Demand Registrations. (a) At any time and from time to time, the Holders’ Representative shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof. (b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows: (i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and (ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder. (c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period. (d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h). (e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company. (f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement. (g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above. (h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 2 contracts
Sources: Exchange Agreement (Americredit Corp), Registration Rights Agreement (Americredit Corp)
Demand Registrations. (ai) At Subject to Section 2.1(c), at any time and or from time to timetime after the six-month anniversary of the first date on which the Company shall have effected the registration under the Securities Act of any shares of Common Stock, the Holders’ Representative one or more Holders shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act covering Registrable Securities with an aggregate value of $10,000,000 or greater (based on the market price of the Common Stock as of the date of the Demand Registration Request (as defined below)), by delivering a written request therefor to the Company specifying the number of Registrable Securities owned to be included in such registration by such Holders and the intended method of distribution thereof. All such requests by any Holder pursuant to this Section 2.1(a)(i) are referred to as “Demand Registration Requests,” the registrations so requested by are referred to as “Demand Registrations” and the Holders making such demand for registration are referred to as the “Initiating Holders.” As promptly as practicable but no later than ten days after receipt of a Demand Notice to be so registered Registration Request, the Company shall give written notice (a “Demand Exercise Notice”) of such Demand Registration Request to all Holders.
(ii) The Company, subject to Sections 2.3 and 2.7, shall include in a Demand Registration (A) the Registrable Securities of the Initiating Holders and (B) the Registrable Securities of any other Holder that shall have made a written request to the Company within the time limits specified below for inclusion in such registration. Any such request from the other Holders must be delivered to the Company within 15 days after the receipt of the Demand Exercise Notice and must specify the maximum number of Registrable Securities intended to be disposed of by such other Holder.
(iii) The Company, as expeditiously as possible but subject to Section 2.1(c), shall use its commercially reasonable efforts to effect such Demand Registration.
(b) Registrations under this Section 2.1 shall be on such appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which form shall be selected by the Company and shall be reasonably acceptable to the Majority Participating Holders.
(c) The Demand Registration rights granted in Section 2.1(a) to the Holders are subject to the following limitations:
(i) the Company shall not be required to cause a registration pursuant to Section 2.1(a) to be filed within 90 days or to be declared effective within a period of 180 days after the effective date of any other registration statement of the Company filed pursuant to the Securities Act;
(ii) if, in the opinion of outside counsel to the Company, any registration of Registrable Securities would require disclosure of information not otherwise then required by law to be publicly disclosed and, in the good faith judgment of the board of directors of the Company, such disclosure is reasonably likely to adversely affect any material financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Company or otherwise have a material adverse effect on the Company (a “Valid Business Reason”), the Company may postpone or withdraw a filing of a registration statement relating to a Demand Registration Request until such Valid Business Reason no longer exists, but in no event shall the Company avail itself of such right for more than 90 days, in the aggregate, in any period of 365 consecutive days (such period of postponement or withdrawal under this clause (ii), the “Postponement Period”); and the Company shall give notice to the Participating Holder(s) of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof; and
(iii) the Company shall not be obligated to effect more than five Demand Registrations under Section 2.1(a) for benefit of the Holders. If the Company shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (ii) above, the Company shall not register any equity security of the Company during the period of postponement or withdrawal. Each Holder agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw any registration statement pursuant to clause (ii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Company shall have withdrawn or prematurely terminated a registration statement filed under Section 2.1(a)(i), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement pursuant to clause (ii) above, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event more than 90 days after the date of the postponement or withdrawal), the Company shall use its commercially reasonable efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1.
(d) The Company, subject to Sections 2.3 and 2.7, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), (i) authorized but unissued shares of Common Stock or shares of Common Stock held by the Company as treasury shares and/or (ii) any other shares of Common Stock that are requested to be included in such registration pursuant to the exercise of piggyback rights granted by the Company that are not inconsistent with the rights granted in, or otherwise conflict with the terms of, this Agreement (“Additional Piggyback Rights”); provided, however, that such inclusion shall be permitted only to the extent that it is pursuant to and subject to the terms of the underwriting agreement or arrangements, if any, entered into by the Participating Holders.
(e) A Holder may withdraw its Registrable Securities from a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) Registration at least 20% of the aggregate number of Registrable Securities then held by any time. If all such Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Noticedo so, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect cease all efforts to any underwritten offering, secure registration and such registration nonetheless shall be deemed a Demand Registration for purposes of this Section 2.1 unless (i) the withdrawal is made following withdrawal or 30 days with respect to any other offering, after receipt postponement of such registration by the Company of such Demand Notice (subject pursuant to paragraph (e) of this a Valid Business Reason as contemplated by Section 2.12.1(c)(ii), a Registration Statement relating to (ii) the offer and sale withdrawal is based on the reasonable determination of the Registrable Securities requested to be included therein Initiating Holders that there has been, since the date of the Demand Registration Request, a material adverse change in the business or prospects of the Company or (iii) the Initiating Holders have paid or reimbursed the Company for all of the reasonable out-of-pocket fees and expenses incurred by the Holders thereof Company in accordance connection with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofwithdrawn registration.
(bf) No securities shall be included under any A Demand Registration Statement related shall not be deemed to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, have been effected and the managing underwriter(s) of shall not count as such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, unless a registration statement with respect thereto has become effective and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement has remained effective for a period of at least one year after the effective date thereof 180 days or such shorter period in during which all Registrable Securities included in covered by such Registration Statement registration statement have actually been sold. For the avoidance of doubtsold or withdrawn, the foregoing sentence is not intended or, if such registration statement relates to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period)an underwritten offering, for a reasonable such longer period of time not in excess of 60 days (and not for periods exceedingas, in the aggregate, 90 days during any twelve-month periodopinion of counsel for the underwriter(s), the filing or initial effectiveness of, or suspend the use of, is required by law for delivery of a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, prospectus in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere connection with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in by an underwriter or dealer, (ii) if, after the applicable registration relating statement with respect thereto has become effective, it becomes subject to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity governmental agency or courtcourt for any reason, (Diii) more than 10% of the Registrable Securities requested if it is withdrawn by the Holders to be included in the registration are not so included Company pursuant to a Valid Business Reason as contemplated by Section 2.1(b), 2.1(c) or (Eiv) if the conditions to closing specified in any underwriting the purchase agreement or purchase underwriting agreement entered into in connection with the registration relating to such request Demand Registration are not satisfied (satisfied, other than as a result solely by reason of a material default some act or breach thereunder by omission of the applicable Participating Holders). Notwithstanding anything to the contrary.
(g) In connection with any Demand Registration, the Company will pay all expenses (in accordance with Section 2.8) Majority Participating Holders may designate the lead managing underwriter in connection with any request such registration and each other managing underwriter for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoingregistration, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (includingprovided, without limitationthat, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything each such underwriter is reasonably satisfactory to the contrary in Section 2.1(d))Majority Participating Holders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Foundation Building Materials, Inc.), Registration Rights Agreement (Forterra, Inc.)
Demand Registrations. (a) At Subject to Section 2.1(c), at any time and or from time to timetime after the 180th day after the first date on which the Company shall have effected a registration under the Securities Act of any Ordinary Shares, the Holders’ Representative one or more Holders shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act covering such aggregate number of Registrable Securities which represents 20% or greater of the then outstanding Registrable Securities, by delivering a written request therefor to the Company specifying the number of Registrable Securities owned to be included in such registration by such Holders and the intended method of distribution thereof. All such requests by any Holder pursuant to this Section 2.1(a)(i) are referred to as “Demand Registration Requests,” the registrations so requested by are referred to as “Demand Registrations” and the Holders making such demand for registration are referred to as the “Initiating Holders.” As promptly as practicable, but no later than 10 days after receipt of a Demand Notice to be so registered Registration Request, the Company shall give written notice (a “Demand RegistrationExercise Notice”); provided) of such Demand Registration Request to all Holders of record of Registrable Securities.
(ii) The Company, howeversubject to Sections 2.3 and 2.6, that shall include in a Demand Notice may only be made if Registration (A) the amount Registrable Securities of the Initiating Holders and (B) the Registrable Securities of any other Holder of Registrable Securities requested that shall have made a written request to the Company within the time limits specified below for inclusion in such registration (together with the Initiating Holders, the “Participating Holders”). Any such request from the other Holders must be registered is either (i) at least 20% delivered to the Company within 15 days after the receipt of the aggregate Demand Exercise Notice and must specify the maximum number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested intended to be included therein by the Holders thereof in accordance with the methods disposed of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofother Holders.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 2 contracts
Sources: Registration Rights Agreement (Verdant Earth Technologies LTD), Registration Rights Agreement (Verdant Earth Technologies LTD)
Demand Registrations. (ai) At any time and from time to time, the Holders’ Representative shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant Subject to the terms and conditions of this Agreement, at any time following the expiration of the Lock-Up Period, the Purchaser may request the Company to register under the Securities Act all or any portion of the Registrable Securities held by the Purchaser for sale in the manner specified in such notice, provided that the aggregate offering price, as such amount is determined on the cover page of the Registration Statement, shall not be less than $100,000,000. Such request shall specify the intended method of disposition thereof by the Purchaser, including whether (A) the registration requested is for an underwritten offering and (B) the Registration Statement covering such Registrable Securities shall be on Form S-3 (subject to Section 9.1(a)(iii)). If the Company is requested to file a registration on Form S-3 and the Company is then ASR Eligible, the Company shall use commercially reasonable best efforts to cause the Registration Statement to be an ASRS. In the event that any registration pursuant to this Section 9.1(a) shall be, in whole or in part, an underwritten public offering of Common Stock, the number of shares of Registrable Securities to be included in such an underwriting may be reduced if and to the extent that the managing underwriter shall be of the opinion that such inclusion would adversely affect the marketing of the securities therein (an “Underwriter Cutback”). The Purchaser may revoke a request pursuant to this Section 9.1(a)(i) prior to the effective date of the corresponding Registration Statement; provided, that such request shall count as one of the Purchaser’s demand requests referred to in Section 9.1(a)(ii) unless the Purchaser reimburses the Company for all out-of-pocket expenses (including Registration Expenses) incurred by the Company relating to such Registration Statement; provided, further, if the Purchaser revokes a demand pursuant to this Section 9.1(a)(i) within twenty-four (24) hours after notice in writing to the Purchaser of an Underwriter Cutback, (1) such request shall not count as one of its demand requests pursuant to Section 9.1(a)(ii) and (2) the Purchaser will not be obligated to reimburse the Company for any of its out-of-pocket expenses, including Registration Expenses.
(ii) Following receipt of any notice under this Section 9.1(a), the Company shall use commercially reasonable best efforts to register under the Securities Act, for public sale in accordance with the provisions method of disposition specified in such notice from the Securities Act Purchaser, the number of shares of Registrable Securities owned by Holders and requested by specified in such Demand Notice notice. If the method of disposition shall be an underwritten public offering, the Purchaser may designate the managing underwriter(s) or co-managing underwriter(s) of such offering, subject to the approval of the Company, which approval shall not be so registered unreasonably withheld or delayed. The Purchaser shall have two (a “Demand Registration”2) demand registrations pursuant to this Section 9.1(a); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required obligated to effect more than one Demand Registration such registration in any six month one hundred eighty (180)-day period; provided, further, that such obligation shall be deemed satisfied only when a Registration Statement covering all shares of Registrable Securities specified in notices received as aforesaid, for sale in accordance with the method of disposition specified by Purchaser, shall have become effective and, (A) if such method of disposition is a firm commitment underwritten public offering, all such shares shall have been sold pursuant thereto and (B) in any other case, such Registration Statement shall have remained effective throughout the Effectiveness Period.
(diii) In From and after the event of a Demand Registrationdate hereof, the Company shall use its commercially reasonable best efforts to maintain qualify under the continuous effectiveness provisions of the applicable Securities Act, and thereafter, to continue to qualify at all times, for registration on Form S-3 or any successor thereto. Demand registrations pursuant to this Section 9.1(a) shall be on Form S-3 or any similar short-form Registration Statement, if available. In the event the Company fails to qualify, the Company shall be required to effect demand registrations pursuant to this Section 9.1(a) on Form S-1 or any successor thereto to the same extent as the Company would be required to effect demand registrations on Form S-3.
(iv) Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, by providing written notice to the Purchaser, to require the Purchaser to suspend the use of the Prospectus for sales of Registrable Securities under the Registration Statement for a reasonable period of time not to exceed ninety (90) consecutive days or one hundred twenty (120) days in the aggregate in any 12-month period (a “Suspension Period”) if the Board of Directors of the Company (or the executive committee thereof) determines in good faith that such use would (A) require the public disclosure of material non-public information concerning any transaction or negotiations involving the Company that would interfere with such transaction or negotiations or (B) otherwise interfere with financing plans, acquisition activities or business activities of the Company, provided, that, if at least one year after the time of receipt of such notice the Purchaser shall have sold Registrable Securities (or have signed a firm commitment underwriting agreement with respect to the purchase of such shares) and the reason for the Suspension Period is not of a nature that would require a post-effective date thereof amendment to the Registration Statement, then the Company shall use its commercially reasonable best efforts to take such action as to eliminate any restriction imposed by federal securities Laws on the timely delivery of such shares. Immediately upon receipt of such notice, the Purchaser shall discontinue the disposition of Registrable Securities under such Registration Statement and Prospectus relating thereto until such Suspension Period is terminated. The Company agrees that it will terminate any such Suspension Period as promptly as reasonably practicable and will promptly notify the Purchaser of such termination. After the expiration of any Suspension Period and without any further request from the Purchaser, the Company shall as promptly as reasonably practicable prepare a post-effective amendment or such shorter period in which all supplement to the Registration Statement or the Prospectus, or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If a Suspension Period occurs during the Effectiveness Period for a Registration Statement, such Effectiveness Period shall be extended for a number of days equal to the total number of days during which the distribution of Registrable Securities is suspended under this Section 9.1(a)(iv). If the Company notifies the Purchaser of a Suspension Period with respect to a Registration Statement have actually requested pursuant to Section 9.1(a) that has not yet been sold. For declared effective, (i) the avoidance of doubt, Purchaser may by notice to the foregoing sentence is not intended to limit the obligation Company withdraw such request without such request counting as one of the Purchaser’s demand requests under Section 9.1(a)(ii) and (ii) the Purchaser will be not obligated to reimburse the Company to maintain the continuous effectiveness for any of the Shortits out-Form of-pocket expenses, including Registration contemplated by Section 2.1(h) as required by Section 2.1(h)Expenses.
(ev) The Company shall be entitled to postpone (but not more than once include in any six-month periodRegistration Statement referred to in this Section 9.1(a), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods method of distribution elected disposition specified by the HoldersPurchaser, including shares of Common Stock to be sold by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use for its reasonable best efforts own account or to keep such Short-Form Registration effective with the SEC at all times and be sold by any Short-Form Registration shall be re-filed upon Other Equity Purchaser pursuant to its expiration, and the Company shall cooperate piggyback registration rights set forth in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities Other Investment Agreement (in each case, notwithstanding anything to the contrary extent that the inclusion of any such shares shall not adversely affect the offering, as determined in Section 2.1(dthe reasonable judgment of the Company’s advisors)). The Registrable Securities of the Purchaser shall have priority for inclusion in any firm commitment underwritten offering, ahead of any primary issuance by the Company and all Registrable Securities held by other holders included in such offering, in any Underwriter Cutback. The Selling Shareholders (and their affiliates and permitted transferees) shall be permitted to include the shares of Common Stock owned by them in any such Registration Statement or offering in accordance with the exercise of piggyback rights granted to them, but the Purchaser shall have priority over the Selling Shareholders in the event of an Underwriter Cutback.
Appears in 2 contracts
Sources: Investment Agreement, Investment Agreement (Liberty Media Corp)
Demand Registrations. (a) At From and after the expiration of the Restricted Period, subject to the terms and conditions hereof (x) solely during any time and from time period that the Company is then-ineligible under Applicable Law to timeregister Registrable Securities on Form S-3 pursuant to Section 5.3 or, if the Holders’ Representative Company is so eligible but has failed to comply with its obligations under Section 5.3 or (y) following the expiration of the Company’s obligation to keep the Shelf Registration Statement continuously effective pursuant to Section 5.3(c), but only if there is no Shelf Registration Statement then in effect, any Demand Stockholders (“Requesting Stockholders”) shall have the right by delivering one or more be entitled to make an unlimited number of written notices to requests of the Company (each, a “Demand NoticeDemand”) to require for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Stockholders that equals or is greater than the Registrable Amount (a “Demand Registration”). Thereupon the Company towill, pursuant subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register under and by the Requesting Stockholders for disposition in accordance with the provisions intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which the Securities Act Company has been requested to register pursuant to Section 5.1(b), but subject to Section 5.1(g); and
(iii) all shares of Company Common Stock which the number Company may elect to register in connection with any offering of Registrable Securities owned by Holders pursuant to this Section 5.1, but subject to Section 5.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and requested by such Demand Notice the additional shares of Company Common Stock, if any, to be so registered registered.
(a “b) A Demand Registration”); provided, however, that a Demand Notice may only be made if shall specify: (i) the amount aggregate number of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or in such Demand Registration, (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected intended method or methods of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the applicable Registrable SecuritiesRequesting Stockholder(s). Following Within three (3) Business Days after receipt of a Demand NoticeDemand, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days give written notice of such Demand to all other holders of Registrable Securities. The Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by which the Company of such Demand Notice has received a written request for inclusion therein within ten (10) days after the Company’s notice required by this paragraph has been given, subject to paragraph (e) Section 5.1(g). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2.15.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one A Demand Registration in any six month period.
(d) In the event of shall not be deemed to have been effected and shall not count as a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement (i) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least one year after the effective date thereof hundred eighty (180) days or such shorter period in which all Registrable Securities included in such Demand Registration Statement have actually been sold thereunder (provided, that such period shall be extended for a period of time equal to the period the holder of Registrable Securities refrains from selling any securities included in such registration statement at the request of the Company or the lead managing underwriter(s) pursuant to the provisions of this Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to one hundred eighty (180) days after effectiveness, to any stop order, injunction or other order or requirement of the Commission or other Governmental Authority, other than by reason of any act or omission by the applicable Selling Stockholders.
(d) Demand Registrations shall be on such appropriate registration form of the Commission as shall be selected by the Company and reasonably acceptable to the Requesting Stockholders.
(e) The Company shall not be obligated to (i) subject to Section 5.1(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration, for a period longer than one hundred eighty (180) days or (ii) effect any Demand Registration (A) within six (6) months of a “firm commitment” Underwritten Offering in which all Demand Stockholders were offered “piggyback” rights pursuant to Section 5.2 (subject to Section 5.2(b)) and at least 75% of the number of Registrable Securities requested by such Demand Stockholders to be included in such Demand Registration were included and sold. For , (B) within six (6) months of the completion of any other Demand Registration (including, for the avoidance of doubt, any Underwritten Offering pursuant to any Shelf Registration Statement) or (C) if, in the foregoing sentence Company’s reasonable judgment, it is not intended to limit the obligation of feasible for the Company to maintain proceed with the continuous effectiveness Demand Registration because of the Short-Form Registration contemplated by Section 2.1(h) unavailability of audited or other required financial statements; provided, that the Company shall use its reasonable best efforts to obtain such financial statements as required by Section 2.1(h)promptly as practicable.
(ef) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in upon written notice to the aggregate, 90 days during any twelve-month period), Demand Stockholders) the filing or initial the effectiveness of, or suspend the use of, of a registration statement for any Demand Registration Statement if in the event of a Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period under clause (ii) of the definition thereof, the Company delivers shall deliver to the Holders’ Representative Demand Stockholders requesting registration a certificate signed by both either the Chief Executive Officer and Chief Financial Officer chief executive officer or the chief financial officer of the Company certifying that, in the good faith judgment of the Board of Directors Board, the conditions described in clause (ii) of the Companydefinition of Blackout Period are met. Such certificate shall contain an approximation of the anticipated delay.
(g) If, in connection with a Demand Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its (their) opinion, the inclusion of all of the securities sought to be registered in connection with such registration, offering or use Demand Registration would reasonably be expected to materially adversely affect or materially interfere with any bona fide the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and imminent material financing in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Demand Stockholders, which, in the opinion of the lead managing underwriter(s), can be sold without adversely affecting the success thereof, pro rata among such Demand Stockholders on the basis of the number of such Registrable Securities requested to be included by such Demand Stockholders; (ii) second, up to the number of Registrable Securities requested to be included in such Demand Registration by other holders of Registrable Securities, pro rata on the basis of the amount of such Registrable Securities requested to be included by such holders; (iii) third, securities the Company proposes to sell; and (iv) fourth, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or any imminent material transaction under consideration such other allocation method determined by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(fh) The Holders’ Representative shall have the right to notify the Company Any time that it has determined that the Registration Statement relating to a Demand Registration involves an Underwritten Offering, the Requesting Stockholder(s) shall select the investment banker(s) and manager(s) that will serve as managing underwriters (including which such managing underwriters will serve as lead or co-lead) and underwriters with respect to the offering of such Registrable Securities; provided, that such investment banker(s) and manager(s) shall be abandoned or withdrawn, in which event reasonably acceptable to the Company shall promptly abandon or withdraw (such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is acceptance not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b)unreasonably withheld, conditioned or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)delayed).
Appears in 2 contracts
Sources: Stockholders Agreement (Us Foods, Inc.), Stockholders Agreement (Sysco Corp)
Demand Registrations. (ai) At Subject to Section 2.1(b), at any time and from time to timetime after the date of this Agreement, the Holders’ Representative any Holder shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act covering all or a portion of the Registrable Securities, by delivering a written request therefor to the Company specifying the number of Registrable Securities owned to be included in such registration by such Holder and the intended method of distribution thereof. All such requests by any Holder pursuant to Section 2.1(a)(i) are referred to herein as “Demand Registration Requests,” and the registrations so requested are referred to herein as “Demand Registrations” (with respect to any Demand Registration Request, the Holders making such Demand Registration Request being referred to as the “Initiating Holders”). As promptly as practicable, but no later than ten days after receipt of a Demand Registration Request, the Company shall give written notice (the “Demand Exercise Notice”) of such Demand Registration Request to all Holders of record.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holders and requested by (y) the Registrable Securities of any other Holder which shall have made a written request to the Company for inclusion in such Demand Notice to be so registered Registration (a together with the Initiating Holders, the “Demand RegistrationParticipating Holders”); provided, however, that a Demand Notice may only be made if ) (which request shall specify the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate maximum number of Registrable Securities then held intended to be disposed of by all Holders or (iisuch Participating Holders) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, within 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after the receipt by the Company of the Demand Exercise Notice (or 30 days if, at the request of the Initiating Holders, the Company states in such Demand Exercise Notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form F-3).
(iii) The Company shall, as expeditiously as possible but subject to paragraph (e) of this Section 2.12.1(b), a Registration Statement relating use its commercially reasonable efforts to (x) effect such registration under the offer and sale Securities Act of the Registrable Securities which the Company has been so requested to be included therein by the Participating Holders thereof to register, for distribution in accordance with the methods such intended method of distribution elected and (y) if requested by the Majority Participating Holders, obtain acceleration of the effective date of the registration statement relating to such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofregistration.
(b) No securities shall be included under any Notwithstanding anything to the contrary in Section 2.1(a), the Demand Registration Statement related rights granted in Section 2.1(a) to an underwritten offering without the written consent of Holders are subject to the Holders’ Representative, except Registrable Securities requested following limitations: (i) the Company shall not be required to be included therein cause a registration statement pursuant to Section 2.1(a). Subject 2.1(a)(i) to be filed, or to be declared effective, within 90 days after the effective date of any other registration statement of the Company filed pursuant to the preceding sentenceSecurities Act (excluding any registration on Form F-4 or S-8 (or otherwise in connection with any employee benefits plan) or any “shelf” registration) or, if in either case, within any longer period of time, subject to the Company’s compliance with Section 4.7, during which the Company may be restricted from filing or having declared effective a registration statement or the Participating Holders may be restricted from selling any of their Registrable Securities; (ii) if the Company, in its good faith judgment, determines that any registration of Registrable Securities registered pursuant should not be made or continued because it would materially interfere with any material financing, acquisition, corporate reorganization or merger or other transaction or event involving the Company or any of its subsidiaries (a “Valid Business Reason”), the Company may postpone filing, or may withdraw, or not seek to bring effective, a registration statement relating to a Demand Registration are to be sold in a firm commitment underwritten offeringRequest until such Valid Business Reason no longer exists, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and but in no event shall the Company be required to effect avail itself of such right for more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding90 days, in the aggregate, 90 in any period of 365 consecutive days during any twelve-month period(such period of postponement or withdrawal under this clause (ii), the filing “Postponement Period”); and the Company shall give notice to the relevant Participating Holders of its determination to postpone or initial effectiveness ofwithdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, or suspend in each case, promptly after the use of, occurrence thereof; (iii) the Company shall not be required to effect a Demand Registration Statement if unless the Registrable Securities to be included in such registration either (A) have an aggregate anticipated offering price of at least $20,000,000 (based on the then-current market price of the Common Stock) or (B) consist of all remaining Registrable Securities held by the relevant Participating Holders. If the Company delivers shall give any notice of postponement or withdrawal of any registration statement pursuant to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer clause (ii) of this Section, the Company certifying thatshall not, in during the good faith judgment period of the Board of Directors postponement or withdrawal, register any equity security of the Company, such registration, offering other than pursuant to a registration statement on Form F-4 or use would reasonably be expected to materially adversely affect S-8 (or materially interfere otherwise in connection with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not beenemployee benefits plan). Each Participating Holder agrees that, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify upon receiving notice from the Company that the Company has withdrawn any registration statement pursuant to clause (ii) of this Section, it has determined that will (x) discontinue its disposition of Registrable Securities pursuant to such registration statement and (y) if so directed by the Registration Statement relating Company, deliver to a Demand Registration be abandoned or withdrawnthe Company (at the Company’s expense) all copies, other than permanent file copies, in which event its possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice. If the Company shall promptly abandon have withdrawn or withdraw such Registration Statement.
prematurely terminated a registration statement filed under Section 2.1(a)(i) (gwhether pursuant to clause (ii) No request for registration will count for the purposes above or as a result of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement, the Company shall, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (D) more but in no event later than 10% three months after the date of the notice notifying the relevant Participating Holders of the postponement or withdrawal), use its commercially reasonable efforts to effect the registration under the Securities Act of the Registrable Securities requested covered by the withdrawn or postponed registration statement in accordance with Section 2.1 (unless the Initiating Holders shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of this Agreement).
(c) The Company, subject to Sections 2.3 and 2.6, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), (i) authorized but unissued shares of Common Stock or shares of Common Stock held by the Company as treasury shares and (ii) any other shares of Common Stock which are requested to be included in such registration pursuant to the registration exercise of piggyback rights granted by the Company which are not so included inconsistent with the rights granted in, or otherwise conflict with the terms of, this Agreement (“Additional Piggyback Rights”); provided, however, that such inclusion shall be permitted only to the extent that it is pursuant to Section 2.1(b), or (E) and subject to the conditions to closing specified in any terms of the underwriting agreement or purchase agreement arrangements, if any, entered into by the relevant Participating Holders.
(d) With respect to any Demand Registration, the Initiating Holders shall have the right to designate the lead managing underwriter in connection with the such registration relating to and each other managing underwriter for such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything registration, provided that no such managing underwriter shall be reasonably objectionable to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth aboveCompany.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 2 contracts
Sources: Registration Rights Agreement (Costamare Inc.), Registration Rights Agreement (Costamare Inc.)
Demand Registrations. (ai) At Subject to Section 2.2(c), at any time and or from time to timetime after the three-month anniversary of the date hereof, the Holders’ Representative one or more Original Holders shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act covering Registrable Securities with an aggregate value of $20 million or greater (based on the market price of the A Shares as of the date of the Demand Registration Request (as defined below)), by delivering a written request therefor to the Company specifying the number of Registrable Securities owned to be included in such registration by such Original Holders and the intended method of distribution thereof. All such requests by any Original Holder pursuant to this Section 2.2(a)(i) are referred to as “Demand Registration Requests,” the registrations so requested by are referred to as “Demand Registrations” and the Original Holders making such demand for registration are referred to as the “Initiating Holders.” As promptly as practicable, but no later than ten days after receipt of a Demand Notice to be so registered Registration Request, the Company shall give written notice (a “Demand Exercise Notice”) of such Demand Registration Request to all Holders of record of Registrable Securities other than the Initiating Holders.
(ii) The Company shall, subject to Sections 2.4 and 2.8, include in a Demand Registration (A) the Registrable Securities of the Initiating Holders and (B) the Registrable Securities of any other Holder that shall have made a written request to the Company within the time limits specified below for inclusion in such registration. Any such request from the other Holders must be delivered to the Company within 15 days after the receipt of the Demand Exercise Notice and must specify the maximum number of Registrable Securities intended to be disposed of by such other Holder.
(iii) The Company, as expeditiously as possible but subject to Section 2.2(c), shall use its commercially reasonable efforts to effect such Demand Registration.
(b) Registrations under this Section 2.2 shall be on such appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which form shall be selected by the Company.
(c) The Demand Registration rights granted in Section 2.2(a) to the Original Holders are subject to the following limitations:
(i) the Company shall not be required to cause a registration pursuant to Section 2.2(a) to be filed within 90 days, or to be declared effective within a period of 180 days, after the effective date of any other registration statement of the Company filed pursuant to the Securities Act;
(ii) if any registration of Registrable Securities of an Original Holder would require disclosure of information not otherwise then required by law to be publicly disclosed and, in the good faith judgment of the board of directors of the Company, such disclosure is reasonably likely to adversely affect any material financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Company or otherwise have a material adverse effect on the Company (a “Valid Business Reason”), the Company may postpone the filing of or withdraw a registration statement relating to a Demand Registration Request until such Valid Business Reason no longer exists, but in no event shall the Company avail itself of such right for more than 120 days, in the aggregate, in any period of 365 consecutive days (such period of postponement or withdrawal under this clause (ii), the “Postponement Period”); and the Company shall give notice to the Participating Holder(s) of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof; and
(iii) the Company shall not be obligated to effect more than five Demand Registrations under Section 2.2(a). If the Company shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (ii) above, the Company shall not register any equity security of the Company during the period of postponement or withdrawal. Each Original Holder agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw any registration statement pursuant to clause (ii) above, such Original Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Company shall have withdrawn or prematurely terminated a registration statement filed under Section 2.2(a)(i), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement pursuant to clause (ii) above, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event more than 180 days after the date of the postponement or withdrawal), the Company shall use its commercially reasonable efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.2.
(d) The Company may, subject to Sections 2.4 and 2.8, elect to include in any registration statement and offering made pursuant to Section 2.2(a), (i) authorized but unissued A Shares or A Shares held by the Company as treasury shares and/or (ii) any other A Shares that are requested to be included in such registration pursuant to the exercise of piggyback rights granted by the Company that are not inconsistent with the rights granted in, or that do not otherwise conflict with the terms of, this Agreement (“Additional Piggyback Rights”); provided, however, that such inclusion shall be permitted only to the extent that it is pursuant to and subject to the terms of the underwriting agreement or arrangements, if any, entered into by the Participating Holders.
(e) Any Holder may withdraw its Registrable Securities from a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) Registration at least 20% of the aggregate number of Registrable Securities then held by any time. If all such Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Noticedo so, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect cease all efforts to any underwritten offering, secure registration and such registration nonetheless shall be deemed a Demand Registration for purposes of this Section 2.2 unless (i) the withdrawal is made following withdrawal or 30 days with respect to any other offering, after receipt postponement of such registration by the Company of such Demand Notice (subject pursuant to paragraph (e) of this a Valid Business Reason as contemplated by Section 2.12.2(c)(ii), a Registration Statement relating to (ii) the offer and sale withdrawal is based on the reasonable determination of the Registrable Securities requested to be included therein Initiating Holders that there has been, since the date of the Demand Registration Request, a material adverse change in the business or prospects of the Company or (iii) the Initiating Holders have paid or reimbursed the Company for all of the reasonable out-of-pocket fees and expenses incurred by the Holders thereof Company in accordance connection with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofwithdrawn registration.
(bf) No securities shall be included under any A Demand Registration Statement related shall not be deemed to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, have been effected and the managing underwriter(s) of shall not count as such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, unless a registration statement with respect thereto has become effective and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement has remained effective for a period of at least one year after the effective date thereof 180 days or such shorter period in during which all Registrable Securities included in covered by such Registration Statement registration statement have actually been sold. For the avoidance of doubtsold or withdrawn, the foregoing sentence is not intended or, if such registration statement relates to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period)an underwritten offering, for a reasonable such longer period of time not in excess of 60 days (and not for periods exceedingas, in the aggregate, 90 days during any twelve-month periodreasonable opinion of counsel for the underwriter(s), the filing or initial effectiveness of, or suspend the use of, is required by law for delivery of a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, prospectus in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere connection with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in by an underwriter or dealer, (ii) if, after the applicable registration relating statement with respect thereto has become effective, it becomes subject to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity governmental agency or courtcourt for any reason, (Diii) more than 10% of the Registrable Securities requested if it is withdrawn by the Holders to be included in the registration are not so included Company pursuant to a Valid Business Reason as contemplated by Section 2.1(b), 2.2(c) or (Eiv) if the conditions to closing specified in any underwriting the purchase agreement or purchase underwriting agreement entered into in connection with the registration relating to such request Demand Registration are not satisfied (satisfied, other than as a result solely by reason of a material default some act or breach thereunder by omission of the applicable Participating Holders). Notwithstanding anything to the contrary.
(g) In connection with any Demand Registration, the Company will pay all expenses (in accordance with Section 2.8) Initiating Holders may designate the lead managing underwriter in connection with any request such registration and each other managing underwriter for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoingregistration, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (includingprovided, without limitationthat, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything each such underwriter is reasonably satisfactory to the contrary in Section 2.1(d))Company.
Appears in 2 contracts
Sources: Registration Rights Agreement (Eros International PLC), Registration Rights Agreement (Eros International PLC)
Demand Registrations. (ai) At any time from and from time to timeafter the Closing Date, any Holder or Holders (the "Initiating Holders’ Representative shall have ") who own, in the right aggregate, at least a majority of the Registrable Securities may elect, by delivering one or more giving written notices notice thereof to the Company (eachCompany, a “Demand Notice”) to require the Company to, pursuant to the terms use its reasonable best efforts to register all or a portion of this Agreement, register its Registrable Securities under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by Act. Promptly following such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Noticeelection, the Company shall file(1) give notice (the "Demand Notice") to each other Holder (collectively, as promptly as reasonably practicablethe "Other Holders") of Registrable Securities, but not later thanif any, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1)election, a Registration Statement relating to which notice shall set forth the offer and sale identity of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders Initiating Holders, and (a “Demand Registration Statement”2) and shall use its reasonable best efforts to cause such Registration Statement to be declared or become effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous in accordance with the intended method or delayed basis (notwithstanding anything to methods of distribution thereof by the contrary in Section 2.1(d)) electing Holders of, the Registrable Securities, Securities requested to be included therein in writing by the Initiating Holders and by any Other Holders who request the inclusion in such registration statement of their Registrable Securities by delivery of a written notice to the Company no later than the 15th calendar day following the date the Demand Notice is delivered by the Company. The Company shall be required to cause to become effective pursuant to Rule 415 this Section 2(a) no more than two registration statement upon any election pursuant to this Section 2(a)(i) by the Holders unless the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, in which case the Holders shall have the unlimited right to permit require such registrations on Form S-3. Notwithstanding the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registrationforegoing, the Company shall use not be obligated to register Registrable Securities on Form S-3 under the Securities Act upon any election pursuant to this Section 2(a)(i) if the Company has registered Registrable Securities on Form S-3 or any other form under the Securities Act twice in the preceding twelve month period upon elections pursuant to this Section 2(a)(i). Notwithstanding any provisions of this Section 2(a) to the contrary, if the Company is not subject to Sections 12(b) or (g) or 15(d) of the Exchange Act, the Holders may not exercise the demand rights provided for under this Section 2(a)(i) until the earlier of (i) the date 180 days after the consummation by the Company of an underwritten public offering of its reasonable best efforts Common Stock subsequent to keep the date on which the Company first ceases to be subject to such Short-Form Registration effective sections of the Exchange Act or (ii) the second anniversary of the date the Company ceases to be subject to such sections of the Exchange Act; provided, however, that the Holders may not exercise the demand rights under this clause (ii) unless the maximum initial public offering price of the securities to be registered as set forth on the cover page of the registration statement in the form initially filed with the SEC is such that it implies a valuation of all of the Common Stock, calculated on an as-converted basis, of at all times and least $50.0 million (before giving effect to the receipt of any Short-Form Registration shall proceeds to be re-filed upon its expirationreceived by the Company in such offering).
(ii) In the event of any registration of Registrable Securities pursuant to Section 2(a)(i) hereof, and the Company shall cooperate not, without the express written consent of the Holders of a majority of such Registrable Securities, cause or permit any other securities of the Company or of any other Person (whether such securities are to be issued by the Company, are held in the Company's treasury or are then outstanding and held by other persons) to be covered by such registration statement or otherwise to be included in such registration (except that such consent shall not be required in the event such registration statement is a "shelf" that only covers a non-underwritten offering pursuant to Rule 415 of the Securities Act), except for Other Holders of Registrable Securities as contemplated by Section 2(a)(i) hereof.
(iii) In the event that, following any shelf take-down election pursuant to Section 2(a)(i) hereof but prior to the filing of a registration statement in respect of such election, (A) the Board of Directors of the Company, in its reasonable judgment and in good faith, resolves that the filing of such registration statement and the offering of Registrable Securities pursuant thereto would materially interfere with any significant acquisition, corporate reorganization, financing or other similar transaction involving the Company, and (B) the Company gives the Holders having made such election written notice of such determination (which notice shall include a copy of such resolution), the Company shall, notwithstanding the provisions of Section 2(a)(i) hereof, be entitled to postpone for up to 90 days the filing of any registration statement otherwise required to be prepared and filed by amending or supplementing the Prospectus related it pursuant to Section 2(a)(i) hereof; provided, however, that no such Short-Form Registration as postponement may be reasonably requested by effected if any other postponement of a registration pursuant to this Section 2 was in effect during the Holders’ Representative or as otherwise required12 months immediately preceding the commencement of such postponement, until unless any Holders having made elections during the Holders no longer hold previous postponement shall have had the opportunity to register their Registrable Securities (in each case, notwithstanding anything pursuant to an effective registration statement prior to the contrary in Section 2.1(d))current postponement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Vie Financial Group Inc), Registration Rights Agreement (Vie Financial Group Inc)
Demand Registrations. (ai) At Subject to Section 2.1(c), at any time and or from time to timetime after the six-month anniversary of the first date on which the Company shall have effected the registration under the Securities Act of any shares of Common Stock, the Holders’ Representative one or more Holders shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act covering Registrable Securities with an aggregate value of $10,000,000 or greater (based on the market price of the Common Stock as of the date of the Demand Registration Request), by delivering a written request therefor to the Company specifying the number of Registrable Securities owned to be included in such registration by such Holders and the intended method of distribution thereof. All such requests by any Holder pursuant to this Section 2.1(a)(i) are referred to as “Demand Registration Requests,” the registrations so requested by are referred to as “Demand Registrations” and the Holders making such demand for registration are referred to as the “Initiating Holders.” As promptly as practicable but no later than ten days after receipt of a Demand Notice to be so registered Registration Request, the Company shall give written notice (a “Demand RegistrationExercise Notice”) of such Demand Registration Request to all Holders.
(ii) The Company, subject to Sections 2.3 and 2.7, shall include in a Demand Registration (A) the Registrable Securities of the Initiating Holders and (B) the Registrable Securities of any other Participating Holders that shall have made a written request to the Company within the time limits specified below for inclusion in such registration. Any such request from the other Holders must be delivered to the Company within 15 days after the receipt of the Demand Exercise Notice and must specify the maximum number of Registrable Securities intended to be disposed of by such other Holders.
(iii) The Company, as expeditiously as possible but subject to Section 2.1(c), shall use its commercially reasonable efforts to effect such registration under the Securities Act of the Registrable Securities that the Company has been so requested to register for distribution in accordance with such intended method of distribution.
(b) Registrations under this Section 2.1 shall be on such appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which form shall be selected by the Company and shall be reasonably acceptable to the Majority Participating Holders.
(c) The Demand Registration rights granted in Section 2.1(a) to the Holders are subject to the following limitations:
(i) the Company shall not be required to cause a registration pursuant to Section 2.1(a) to be filed within 90 days or to be declared effective within a period of 180 days after the effective date of any other registration statement of the Company filed pursuant to the Securities Act;
(ii) if, in the opinion of outside counsel to the Company, any registration of Registrable Securities would require disclosure of information not otherwise then required by law to be publicly disclosed and, in the good faith judgment of the board of directors of the Company, such disclosure is reasonably likely to adversely affect any material financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Company or otherwise have a material adverse effect on the Company (a “Valid Business Reason”), the Company may postpone or withdraw a filing of a registration statement relating to a Demand Registration Request until such Valid Business Reason no longer exists, but in no event shall the Company avail itself of such right for more than 90 days, in the aggregate, in any period of 365 consecutive days (such period of postponement or withdrawal under this clause (ii), the “Postponement Period”); and the Company shall give notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof; and
(iii) the Company shall not be obligated to effect more than five Demand Registrations under Section 2.1(a) for benefit of the Holders. If the Company shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (ii) above, the Company shall not register any equity security of the Company during the period of postponement or withdrawal. Each Holder agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw any registration statement pursuant to clause (ii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Company shall have withdrawn or prematurely terminated a registration statement filed under Section 2.1(a)(i), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event more than 90 days after the date of the postponement or withdrawal), the Company shall use its commercially reasonable efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1.
(d) The Company, subject to Sections 2.3 and 2.7, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), (i) authorized but unissued shares of Common Stock or shares of Common Stock held by the Company as treasury shares and (ii) any other shares of Common Stock that are requested to be included in such registration pursuant to the exercise of piggyback rights granted by the Company that are not inconsistent with the rights granted in, or otherwise conflict with the terms of, this Agreement (“Additional Piggyback Rights”); provided, however, that such inclusion shall be permitted only to the extent that it is pursuant to and subject to the terms of the underwriting agreement or arrangements, if any, entered into by the Participating Holders.
(e) A Holder may withdraw its Registrable Securities from a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) Registration at least 20% of the aggregate number of Registrable Securities then held by any time. If all such Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Noticedo so, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect cease all efforts to any underwritten offering, secure registration and such registration nonetheless shall be deemed a Demand Registration for purposes of this Section 2.1 unless (i) the withdrawal is made following withdrawal or 30 days with respect to any other offering, after receipt postponement of such registration by the Company of such Demand Notice (subject pursuant to paragraph (e) of this a Valid Business Reason as contemplated by Section 2.12.1(c), a Registration Statement relating to (ii) the offer and sale withdrawal is based on the reasonable determination of the Registrable Securities Holders who requested to be included therein such registration that there has been, since the date of the Demand Registration Request, a material adverse change in the business or prospects of the Company or (iii) the Holders who requested such registration shall have paid or reimbursed the Company for all of the reasonable out-of-pocket fees and expenses incurred by the Holders thereof Company in accordance connection with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofwithdrawn registration.
(bf) No securities shall be included under any A Demand Registration Statement related shall not be deemed to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, have been effected and the managing underwriter(s) of shall not count as such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, unless a registration statement with respect thereto has become effective and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement has remained effective for a period of at least one year after the effective date thereof 180 days or such shorter period in during which all Registrable Securities included in covered by such Registration Statement have actually been sold. For the avoidance of doubtsold or withdrawn, the foregoing sentence is not intended or, if such Registration Statement relates to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period)an underwritten offering, for a reasonable such longer period of time not in excess of 60 days (and not for periods exceedingas, in the aggregate, 90 days during any twelve-month periodopinion of counsel for the underwriter(s), the filing or initial effectiveness of, or suspend the use of, is required by law for delivery of a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, prospectus in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere connection with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in by an underwriter or dealer, (ii) if, after the applicable registration relating statement with respect thereto has become effective, it becomes subject to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity governmental agency or courtcourt for any reason, (Diii) more than 10% of the Registrable Securities requested if it is withdrawn by the Holders to be included in the registration are not so included Company pursuant to a Valid Business Reason as contemplated by Section 2.1(b), 2.1(c) or (Eiv) if the conditions to closing specified in any underwriting the purchase agreement or purchase underwriting agreement entered into in connection with the registration relating to such request Demand Registration are not satisfied (satisfied, other than as a result solely by reason of a material default some act or breach thereunder by omission of the applicable Participating Holders). Notwithstanding anything to the contrary, the Company will pay all expenses .
(in accordance with Section 2.8g) in In connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Demand Registration, the Company shall use its reasonable best efforts to keep may designate the lead managing underwriter in connection with such Short-Form Registration effective with the SEC at all times registration and any Short-Form Registration shall be re-filed upon its expirationeach other managing underwriter for such registration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise requiredprovided, until the Holders no longer hold Registrable Securities (that, in each case, notwithstanding anything each such underwriter is reasonably satisfactory to the contrary in Section 2.1(d))Majority Participating Holders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Continental Building Products, Inc.), Registration Rights Agreement (Southeastern Grocers, LLC)
Demand Registrations. (a) At any time From and from time to timeafter the expiration of the Initial Open Market Shares Restricted Period, the Holders’ Representative Additional Open Market Shares Restricted Period, the Warrant 1 Shares Restricted Period, and/or the Warrant 2 Shares Restricted Period, as applicable, subject to the terms and conditions hereof (x) solely during any period that the Company is then-ineligible under Applicable Law to register Registrable Securities on Form S-3 or, if the Company is so eligible but has failed to comply with its obligations under Section 4.3 or (y) following the expiration of the Company’s obligation to keep the Shelf Registration Statement continuously effective pursuant to Section 4.3(c), but only if there is no Shelf Registration Statement then in effect, any Demand Shareholders (“Requesting Shareholders”) shall have the right by delivering one or more be entitled to make an unlimited number of written notices to requests of the Company (each, a “Demand NoticeDemand”) to require for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders that equals or is greater than the Registrable Amount (a “Demand Registration” and such registration statement, a “Demand Registration Statement”). Thereupon, the Company towill, pursuant subject to the terms of this Agreement, use its commercially reasonable efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register under and by the Requesting Shareholders for disposition in accordance with the provisions intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which the Securities Act Company has been requested to register pursuant to Section 4.1(b), but subject to Section 4.1(g); and
(iii) all shares of Company Common Stock which the number Company may elect to register in connection with any offering of Registrable Securities owned by Holders pursuant to this Section 4.1, but subject to Section 4.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and requested by such Demand Notice the additional shares of Company Common Stock, if any, to be so registered registered.
(a “b) A Demand Registration”); provided, however, that a Demand Notice may only be made if shall specify: (i) the amount aggregate number of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or in such Demand Registration, (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected intended method or methods of disposition in connection with such Demand Registration, to the extent then known, and (iii) the identity of the applicable Registrable SecuritiesRequesting Shareholder(s). Following Within ten (10) days after receipt of a Demand NoticeDemand, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days give written notice of such Demand to all other holders of Registrable Securities. The Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by which the Company of such Demand Notice has received a written request for inclusion therein within ten (10) days after the Company’s notice required by this paragraph has been given, subject to paragraph (e) Section 4.1(g). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2.14.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one A Demand Registration in any six month period.
(d) In the event of shall not be deemed to have been effected and shall not count as a Demand Registration, Registration (i) unless the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Demand Registration Statement with respect thereto has become effective and has remained effective for a period of at least one year after the effective date thereof hundred eighty (180) days or such shorter period in which all Registrable Securities included in such Demand Registration Statement have actually been sold. For sold or otherwise disposed of thereunder (provided, that such period shall be extended for a period of time equal to the avoidance period the holders of doubt, Registrable Securities refrain from selling any securities included in such registration statement at the foregoing sentence is not intended to limit the obligation request of the Company or the lead managing underwriter(s) pursuant to maintain the continuous effectiveness provisions of this Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to one hundred eighty (180) days after effectiveness, to any stop order, injunction or other order or requirement of the Short-Form Registration contemplated Commission or other Governmental Authority, other than by Section 2.1(hreason of any act or omission by the applicable Selling Shareholders.
(d) Demand Registrations shall be on such appropriate registration form of the Commission as required shall be selected by Section 2.1(h)the Company and reasonably acceptable to the Requesting Shareholders.
(e) The Company shall not be obligated to (i) subject to Section 4.1(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration for a period longer than one hundred eighty (180) days or (ii) effect any Demand Registration (A) within six (6) months of a “firm commitment” Underwritten Offering in which all Demand Shareholders were offered “piggyback” rights pursuant to Section 4.2 (subject to Section 4.2(b)) and at least fifty percent (50%) of the number of Registrable Securities requested by such Demand Shareholders to be included in such Demand Registration were included, (B) within six (6) months of the completion of any other Demand Registration (including, for the avoidance of doubt, any Underwritten Offering pursuant to any Shelf Registration Statement) or (C) if, in the Company’s reasonable judgment, it is not feasible for the Company to proceed with the Demand Registration because of the unavailability of audited or other required financial statements of the Company or any other Person; provided, that the Company shall use its commercially reasonable efforts to obtain such financial statements as promptly as practicable.
(f) The Company shall be entitled to (1) postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in upon written notice to the aggregate, 90 days during any twelve-month period), Demand Shareholders) the filing or initial the effectiveness ofof a registration statement for any Demand Registration, or (2) cause any Demand Registration Statement to be withdrawn and its effectiveness terminated and (3) suspend the use ofof the prospectus forming the part of any registration statement, in each case in the event of a Demand Registration Statement if Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period under clause (ii) of the definition thereof, the Company delivers shall deliver to the Holders’ Representative Demand Shareholders requesting registration a certificate signed by both either the Chief Executive Officer and Chief Financial Officer chief executive officer or the chief financial officer of the Company certifying that, in the good faith judgment of the Board Company, the conditions described in clause (ii) of Directors the definition of Blackout Period are met. Such certificate shall contain an approximation of the anticipated delay. Upon notice by the Company to the Demand Shareholders of any such determination, each Demand Shareholder covenants that, subject to Applicable Law, it shall keep the fact of any such notice strictly confidential, and, in the case of a Blackout Period pursuant to clause (ii)(y) of the definition of Blackout Period, promptly halt any offer, sale, trading or other Transfer by it or any of its Affiliates of any Registrable Securities for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration Statement, each prospectus included therein, and any amendment or supplement thereto by it and any of its Affiliates for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and, if so directed in writing by the Company, will deliver to the Company any copies then in the Demand Shareholder’s possession of the prospectus covering such registrationRegistrable Securities that was in effect at the time of receipt of such notice.
(g) If, offering or use in connection with a Demand Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its (their) opinion, the inclusion of all of the securities sought to be registered in connection with such Demand Registration would reasonably be expected to materially adversely affect or materially interfere with any bona fide the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and imminent material financing in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Demand Shareholders, which, in the opinion of the lead managing underwriter(s), can be sold without adversely affecting the success thereof, pro rata among such Demand Shareholders on the basis of the number of such Registrable Securities requested to be included by such Demand Shareholders; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or any imminent material transaction under consideration such other allocation method determined by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(fh) The Holders’ Representative shall have the right to notify the Company Any time that it has determined that the Registration Statement relating to a Demand Registration involves an Underwritten Offering, the Requesting Shareholder(s) shall select the investment banker(s) and manager(s) that will serve as managing underwriters (including which such managing underwriters will serve as lead or co-lead) and underwriters with respect to the offering of such Registrable Securities; provided, that such investment banker(s) and manager(s) shall be abandoned or withdrawn, in which event reasonably acceptable to the Company shall promptly abandon or withdraw (such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is acceptance not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b)unreasonably withheld, conditioned or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)delayed).
Appears in 2 contracts
Sources: Shareholder Agreement (Walgreen Co), Shareholder Agreement (Amerisourcebergen Corp)
Demand Registrations. (a) At Subject to the provisions of this Article II, at any time and from time to time, (i) AIG may request registration under the Holders’ Representative shall have the right by delivering one Securities Act of all or more written notices to the Company any portion of its Registrable Securities on Form S-1 (each, excluding a Shelf Registration) or any successor long-form registration statement (“Demand NoticeLong-Form Registrations”) subject to require the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of Section 2.1(b) and (ii) AIG may, if available, request registration under the Securities Act of all or any portion of its Registrable Securities on a shelf registration statement on Form S-3 or any successor short-form registration statement (a “Shelf Registration”), subject to and in accordance with Section 2.1(b); provided, that the Company shall not be obligated to effect more than four (4) Demand Registrations (as defined below) in any twelve (12)-month period. All registrations requested pursuant to this Section 2.1(a) by AIG are referred to herein as “Demand Registrations.” Each request for a Demand Registration shall specify the approximate number of shares requested to be registered and the intended method of distribution.
(b) If a Demand Registration is an underwritten offering and the managing underwriters advise the Company in writing that in their opinion the number of Registrable Securities owned by Holders and and, if permitted hereunder, other securities requested by such Demand Notice to be so registered (a “Demand Registration”); providedincluded in such offering exceeds the number of Registrable Securities and other securities, howeverif any, that a Demand Notice may only can be made if sold in an orderly manner in such offering, then the amount of Company shall include (i) first, all Registrable Securities requested to be registered is either (i) at least 20% of the aggregate sold by AIG, if any, in such Demand Registration up to that number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) underwriters can be sold in such offering without so adversely affecting such offering, the marketability of the offering and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holderother securities requested to be included.
(c) The Holders collectively shall be entitled Notwithstanding anything to request no more than three Demand Registrations of the Companycontrary in this Agreement, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(di) In the event of a Demand Registration, the Company shall use its reasonable best efforts not be obligated to maintain the continuous effectiveness of the applicable effect any Demand Registration Statement for a period of at least one year after the effective date thereof or such shorter during any period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for is restricted from effecting a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing sale of the shares of Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating Common Stock pursuant to a Demand Registration be abandoned lock-up or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase similar agreement entered into in connection with any offering or sale of Company Common Stock registered with the registration relating to such request are SEC; provided, that the restriction period thereunder shall not satisfied exceed one hundred eighty (180) days after the effective date of the Company’s IPO or sixty (60) days after the effective date of any other than as a result public offering (unless the managing underwriter advises otherwise), and (ii) the Company may postpone the filing or the effectiveness of a material default registration statement for a Demand Registration or breach suspend the use of a prospectus that is part of a Shelf Registration (and therefore suspend sales of Registrable Securities thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.82.1(a)) during any Blackout Period; provided that only in connection with any such event, AIG shall be entitled to withdraw such request for registration pursuant to this Agreement regardless a Demand Registration and, if so withdrawn, such Demand Registration shall not count against the total number of whether or not such request counts toward the limitation set forth aboveDemand Registrations provided for in Section 2.1(a).
(hd) In addition If any Demand Registration, including any take-downs off a Shelf Registration (each, a “Shelf Take-down”), is an underwritten offering, then AIG shall have the right to select the foregoingmanaging underwriters to administer such offering.
(e) For so long as AIG holds any Registrable Securities, the Company will use and its reasonable best efforts to remain qualified for registration on Form S-3 (includingAffiliates shall not, without limitationAIG’s prior written consent, if available, an automatic shelf enter into any Contract providing another Person with registration statement for a “well-known seasoned issuer” as defined in Rule 405 under rights that would conflict with the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery provisions of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))Article IV.
Appears in 2 contracts
Sources: Registration Rights Agreement (American International Group, Inc.), Registration Rights Agreement (Corebridge Financial, Inc.)
Demand Registrations. (a) At any time and from time to time, the Holders’ Representative shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant Subject to the terms of this Agreementand conditions hereof, register under and in accordance with at any time after the provisions expiration of the Restricted Period, if any Shareholder or Shareholders who beneficially own in the aggregate Registrable Securities Act representing not less than 20% of the then outstanding Common Stock request in writing a Demand Registration, which request specifies the number of Registrable Securities owned by Holders requested to be registered, then within ten (10) days after receipt of any such request, the Company shall give written notice of such requested Demand Registration to all other Shareholders who are record holders of Registrable Securities and shall include in the Demand Registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 15 days after the date of mailing of the Company’s notice.
(a) Shareholders shall be entitled to not more than three (3) Demand Registrations, in the aggregate. Subject to the limitations set forth in this
Section 4.1 (a) and in Section 4.1(c), no more than one Demand Registration may be requested by in any six-month period. The Company shall pay all Registration Expenses (as defined in Section 4.5) in connection with each Demand Registration. No request for a Demand Registration shall be permitted unless the Registrable Securities sought to be included in such Demand Notice Registration have an expected market value of at least $50 million. A Registration shall not count as a Demand Registration until it has become effective, and any Registration shall not count as a Demand Registration unless the initiating Shareholder or Shareholders and other Shareholders are able to register and sell at least 50% of the Registrable Securities requested to be so registered included in such Registration.
(a “Demand Registration”); provided, however, that b) If the investment banker(s) or manager(s) of an offering pursuant to a Demand Notice Registration advise the Company in writing that in their opinion the number of Registrable Securities and other securities requested to be included in such offering, exceeds the number of Registrable Securities and other securities, if any, which can be sold in an orderly manner in such offering and/or that the number of shares of Registrable Securities proposed to be included in such offering would adversely affect the price per share of the Common Stock, the Company shall include in the Registration, prior to the inclusion of any securities which are not Registrable Securities, the number of Registrable Securities requested to be included which, in the opinion of the underwriters, can be so sold, pro rata (or as may only have otherwise been agreed among the Shareholders of Registrable Securities to be made if included in such Registration) among the respective Shareholders thereof on the basis of the amount of Registrable Securities requested to be registered by each such Shareholder; provided that if the number of Registrable Securities to be included in the Registration is either (i) at least 20less than 75% of the aggregate number requested to be so included, the Shareholders of Registrable Securities then held covered by all Holders or (ii) reasonably expected such Demand Registration shall be entitled to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) withdraw such request, upon the affirmative vote of Shareholders holding at least $25 million. A Demand Notice shall also specify the expected method or methods 66% of disposition of the applicable such Registrable Securities. Following receipt of , and, if such request is withdrawn, the Demand Registration shall not count as a permitted Demand NoticeRegistration hereunder, and the Company shall file, as promptly as reasonably practicable, but pay all Registration Expenses in connection with the withdrawn Registration. Any Persons who participate in Demand Registrations not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by at the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale Company’s expense must pay their share of the Registrable Securities requested to be included therein by the Holders thereof Registration Expenses as provided in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder4.5.
(c) The Holders collectively Company shall not be obligated to effect any Demand Registration within six months after the effective date of a Registration in which the Shareholders were given Piggyback Registration (as defined in Section 4.2) rights pursuant to Section 4.2. The Company may, not more than twice in any 12-month period, postpone for up to 90 days the filing or the effectiveness of a registration statement for a Demand Registration if the Board determines in good faith that (i) such postponement is necessary in order to avoid premature disclosure of a matter the Board has determined would not be in the best interest of the Company to be disclosed at such time, (ii) the Demand Registration would materially and adversely impact the Company or (iii) the Demand Registration would adversely affect the price per share of the Common Stock; provided, that in such event, the Shareholders of Registrable Securities covered by the Demand Registration shall be entitled entitled, upon the affirmative vote of holders holding at least 66% of such Registrable Securities, to withdraw such request no and, if such request is withdrawn, the Demand Registration shall not count as a permitted Demand Registration hereunder, and the Company shall pay all Registration Expenses in connection with the withdrawn Registration; provided further, that upon the election of the Company and upon notice to the Shareholders of Registrable Securities to be included in such Registration, one such postponement may be extended to not more than three Demand Registrations 120 days at the sole discretion of the Company. In addition, and in no event shall if any request for a Demand Registration is delivered at a time when the Company be required is planning to effect more than one file a registration statement with respect to an underwritten primary offering of Common Stock, the Company may require the Shareholders to postpone a request for Demand Registration in any six month perioduntil the expiration of the 180-day period following the effective date of such registration.
(d) In the event of connection with a Demand Registration, the Company shall use its reasonable best efforts to maintain select the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”investment banker(s) and manager(s) to administer the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 2 contracts
Sources: Shareholders Agreement (US BioEnergy CORP), Shareholders Agreement (US BioEnergy CORP)
Demand Registrations. (ai) At Subject to Sections 2.1(b) and 2.3, at any time and from time to timetime after the closing of an IPO, the Holders’ Representative GSCP Parties or the P2 Manager shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file one or more registration statements under and in accordance with the provisions of the Securities Act covering all or any part of its and its Affiliates’ Registrable Securities by delivering a written request therefor to the Company specifying the number of Registrable Securities owned by Holders and requested by such Demand Notice to be included in such registration and the intended method of distribution thereof. Any such request by any GSCP Party or the P2 Manager pursuant to this Section 2.1(a)(i) is referred to herein as a “Demand Registration Request,” and the registration so registered (requested is referred to herein as a “Demand Registration” (with respect to any Demand Registration, the Holder(s) making such demand for registration being referred to as the “Initiating Holders”); provided. Any Demand Registration Request may request that the Company register Registrable Securities on an appropriate form, howeverincluding a shelf registration statement, that a Demand Notice may only be made and, if the amount Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act, a “WKSI”), an automatic shelf registration statement. The Company shall give written notice (the “Demand Exercise Notice”) of such Demand Registration Request (1) to all Holders of record of Registrable Securities requested (other than individuals) no later than five (5) Business Days after receipt of a Demand Registration Request and (2) to be registered is either all Holders of record of Registrable Securities that are individuals no later than five (i5) at least 20% Business Days after the filing of a registration statement pursuant to the Demand Registration Request (or, in the case of a request for the filing of an automatic shelf registration statement, five (5) Business Days after receipt of the aggregate Demand Registration Request).
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities which shall have made a written request to the Company for inclusion in such registration pursuant to Section 2.2 (which request shall specify the maximum number of Registrable Securities then held intended to be disposed of by all Holders or such Participating Holder) within ten (ii10) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify days after the expected method or methods of disposition receipt of the applicable Registrable Securities. Following receipt Demand Exercise Notice (or five (5) days if, at the request of a Demand Noticethe Initiating Holders, the Company shall filestates in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form S-3).
(iii) The Company shall, as promptly expeditiously as reasonably practicablepossible, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.12.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to (x) file with the SEC (no later than forty five (45) days from the Company’s receipt of the applicable Demand Exercise Notice) and cause such Registration Statement to be declared effective such registration under the Securities Act as promptly as practicable after (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the filing thereofSecurities Act if so requested and if the Company is then eligible to use such a registration) of the Registrable Securities which the Company has been so requested to register, for distribution in accordance with the intended method of distribution, including a distribution to, and resale by, the members or partners of a Holder (a “Partner Distribution”) and (y) if requested by the Initiating Holders, obtain acceleration of the effective date of the registration statement relating to such registration.
(iv) Notwithstanding anything contained herein to the contrary, the Company shall, at the request of any Holder seeking to effect or considering a Partner Distribution, file any prospectus supplement or post-effective amendments, or include in the initial registration statement any disclosure or language, or include in any prospectus supplement or post-effective amendment any disclosure or language, and otherwise take any action, deemed necessary or advisable by such Holder to effect such Partner Distribution.
(b) No securities shall be included under any Notwithstanding anything to the contrary in Section 2.1(a), the Demand Registration Statement related rights granted in Section 2.1(a) are subject to an underwritten offering without the written consent of following limitations: (i) the Holders’ Representative, except Registrable Securities requested Company shall not be required to be included therein cause a registration pursuant to Section 2.1(a). Subject ) to be declared effective within a period of one hundred and twenty (120) days after the effective date of any other registration of the Company (or one hundred and eighty (180) days in the case of an IPO) filed pursuant to the preceding sentence, if Securities Act (other than a Form S-4 or Form S-8 or any successor or other forms promulgated for similar purposes or forms filed in connection with an exchange offer or any employee benefit or dividend reinvestment plan); (ii) the Company shall not be required to effect (A) more than one (1) Demand Registration at the request of the Registrable Securities registered pursuant P2 Manager; provided, that the P2 Manager shall be entitled to a one (1) additional Demand Registration are to be sold in a firm commitment underwritten offering, and if the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offeringP2 Parties, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statementthe P2 Limited Partners, exceeds hold at least 25% of the total number or dollar amount outstanding Common Stock of such securities that can be sold without having an adverse effect the Company on the amount, price, timing date that is three months following the date hereof and (B) more than five (5) Demand Registrations on Form S-1 or distribution any similar long-form registration at the request of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities GSCP Parties (it being understood that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) firstif a single Demand Registration Request is delivered by more than one GSCP Party, the Registrable Securities for which inclusion in such demand offering was registration requested by such Demand Registration Request shall constitute only one Demand Registration); provided, further, that the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively GSCP Parties shall be entitled to request an unlimited number of Demand Registrations on Form S-3 or any similar short-form registration (including pursuant to Rule 415 under the Securities Act); (iii) each registration in respect of a Demand Registration Request made by any Holder must include, in the aggregate (based on the Common Stock included in such registration by all Holders participating in such registration), shares of Common Stock having an aggregate market value of at least the Minimum Threshold; and (iv) if the Board, in its good faith judgment, determines that any registration of Registrable Securities should not be made or continued because it would materially interfere with any existing or potential material financing, acquisition, corporate reorganization, merger, share exchange or other transaction or event involving the Company or any of its subsidiaries or because the Company does not yet have appropriate financial statements of acquired or to be acquired entities available for filing (in each case, a “Valid Business Reason”), then (x) the Company may postpone filing a registration statement relating to a Demand Registration Request until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than three 90 days after the date the Board determines a Valid Business Reason exists and (y) in case a registration statement has been filed relating to a Demand Registrations of Registration Request, if the Valid Business Reason has not resulted in whole or part from actions taken or omitted to be taken by the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registrationmay, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, extent determined in the good faith judgment of the Board of Directors to be reasonably necessary to avoid interference with any of the Companytransactions described above, suspend use of or, if required by the SEC, cause such registrationregistration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until five (5) Business Days after such Valid Business Reason no longer exists, offering but in no event for more than 90 days after the date the Board determines a Valid Business Reason exists (such period of postponement or withdrawal under this clause (iv), the “Postponement Period”). The Company shall give written notice to the Initiating Holders and any other Holders that have requested registration pursuant to Section 2.2 of its determination to postpone or suspend use would reasonably be expected to materially adversely affect of or materially interfere with any bona fide withdraw a registration statement and imminent material financing of the Company fact that the Valid Business Reason for such postponement or any imminent material transaction under consideration by suspension or withdrawal no longer exists, in each case, promptly after the occurrence thereof; provided, however, the Company shall not be permitted to postpone or would require suspend use of or withdraw a registration statement after the disclosure expiration of information that has not been, and is not otherwise required any Postponement Period until twelve (12) months after the expiration of such Postponement Period. If the Company shall give any notice of postponement or suspension or withdrawal of any registration statement pursuant to be, disclosed to the publicclause (iv) above, the premature disclosure Company shall not, during the Postponement Period, register any Common Stock, other than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in effect). Each Holder of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify Registrable Securities agrees that, upon receipt of any notice from the Company that it the Company has determined that the Registration Statement relating to a Demand Registration be abandoned suspend use of, withdraw, terminate or withdrawnpostpone amending or supplementing any registration statement pursuant to clause (iv) above, in which event such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Company shall promptly abandon have suspended use of, withdrawn or withdraw such Registration Statement.
terminated a registration statement filed under Section 2.1(a)(i) (gwhether pursuant to clause (iv) No request for registration will count for the purposes above or as a result of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), the Company shall not be considered to have effected a Demand Registration for the purposes of this Agreement until the Company shall have permitted use of such suspended registration statement or filed a new registration statement covering the Registrable Securities covered by the withdrawn or terminated registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of suspension, withdrawal or postponement of a registration statement, the Company shall, not later than ten (10) Business Days after the Valid Business Reason that caused such suspension, withdrawal or postponement no longer exists (but in no event later than 90 days after the date of the suspension, postponement or withdrawal), as applicable, permit use of such suspended registration statement or use its reasonable best efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the Initiating Holders shall have withdrawn such request, in which case the Company shall not be considered to have effected a Demand Registration for the purposes of this Agreement), and such registration shall not be suspended, withdrawn or postponed pursuant to clause (iv) of Section 2.1(b) above.
(c) In connection with any Demand Registration, the majority of the Initiating Holders participating in such Demand Registration shall have the right to designate the lead managing underwriter (any lead managing underwriter for the purposes of this Agreement, the “Manager”) in connection with any underwritten offering pursuant to such registration and each other managing underwriter for any such underwritten offering; provided that if the Manager is an Affiliate of such Initiating Holder, the terms relating to the engagement of, and any fees and expenses payable to, such Manager shall be agreed upon in good faith; provided, further, that in each case, each such underwriter is reasonably satisfactory to the Company, which approval shall not be unreasonably withheld or delayed.
(d) No Demand Registration shall be deemed to have occurred for purposes of this Section 2.1 (i) if the registration statement relating thereto (x) does not become effective, (Dy) more than 10% is not maintained effective a period of at least one hundred and eighty (180) days after the effective date thereof or such shorter period during which all Registrable Securities included in such Registration Statement have actually been sold (provided, however, 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 an underwriter of the Company), or (z) the offering of the Registrable Securities pursuant to such registration statement is subject to a stop order, injunction, or similar order or requirement of the SEC during such period, (ii) with respect to one Demand Registration for each Initiating Holder, if any of the Registrable Securities requested by the Holders such Initiating Holder to be included in the registration such Demand Registration are not so included pursuant to Section 2.1(b)2.3, (iii) if the method of disposition is a firm commitment underwritten public offering and any of the applicable Registrable Securities have not been sold pursuant thereto or (Eiv) if the conditions to closing specified in any underwriting agreement, purchase agreement or purchase similar agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by such Initiating Holder(s) or its Affiliates) or otherwise waived by such Initiating Holder(s).
(e) In the applicable Holdersevent that the Company files a shelf registration statement under Rule 415 of the Securities Act pursuant to a Demand Registration Request and such registration becomes effective (such registration statement, a “Shelf Registration Statement”), the Initiating Holders with respect to such Demand Registration Request and the Holders of other Registrable Securities registered on such Shelf Registration Statement shall have the right at any time or from time to time to elect to sell pursuant to an underwritten offering Registrable Securities available for sale pursuant to such registration statement (“Shelf Registrable Securities”). Notwithstanding anything The Initiating Holders and such other Holders shall make such election by delivering to the contraryCompany a written request (a “Shelf Underwriting Request”) for such underwritten offering to the Company specifying the number of Shelf Registrable Securities that the Holders desire to sell pursuant to such underwritten offering (the “Shelf Underwriting”). As promptly as practicable, but no later than two (2) Business Days after receipt of a Shelf Underwriting Request, the Company will pay shall give written notice (the “Shelf Underwriting Notice”) of such Shelf Underwriting Request to all expenses other Holders of record of Shelf Registrable Securities. The Company, subject to Sections 2.3 and 2.6, shall include in such Shelf Underwriting (in accordance with Section 2.8x) in connection with the Registrable Securities of the Initiating Holders and (y) the Shelf Registrable Securities of any other Holder of Shelf Registrable Securities which shall have made a written request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoingCompany for inclusion in such Shelf Underwriting (which request shall specify the maximum number of Shelf Registrable Securities intended to be disposed of by such Holder) within five (5) days after the receipt of the Shelf Underwriting Notice. The Company shall, as expeditiously as possible (and in any event within twenty (20) days after the Company will receipt of a Shelf Underwriting Request), but subject to Section 2.1(b), use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitationfacilitate such Shelf Underwriting. Notwithstanding the foregoing, if available, an Investor Holder wishes to engage in an underwritten block trade off of a Shelf Registration Statement (either through filing an automatic shelf registration statement for or through a “welltake-known seasoned issuer” as defined in Rule 405 under down from an already existing Shelf Registration Statement), then notwithstanding the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) foregoing time periods, the Investor Holder only needs to notify the Company of the block trade Shelf Underwriting on the day such offering is to commence and the Company shall file, as promptly as reasonably practicable after notify other Investor Holders on the execution same day and delivery of this Agreement, but other Investor Holders must elect whether or not later than 30 days, to participate on the day such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration ofoffering is to commence, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall as expeditiously as possible use its reasonable best efforts to keep facilitate such Short-Form Registration effective Shelf Underwriting (which may close as early as three (3) Business Days after the date it commences), provided that the Investor Holder requesting such underwritten block trade shall use commercially reasonable efforts to work with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, Company and the Company shall cooperate underwriters prior to making such request in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).order to
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Interline Brands, Inc./De)
Demand Registrations. (a) At any time and from time to time, the Holders’ Representative Manchester shall have the right by delivering one or more a written notices notice to the Company Arsenal (each, a “Demand Notice”) to require the Company Arsenal to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that Arsenal shall not be obligated to effect a Demand Notice may only be made if the amount of Registrable Securities requested Registration pursuant to this Section 2.1 unless no less than three million (3,000,000) Arsenal Shares are proposed to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected sold pursuant to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 millionsuch Demand Registration. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable SecuritiesSecurities and whether the Registration Statement should be a Shelf Registration Statement. Following Subject to paragraph (e) of this Section 2.1, following receipt of a Demand Notice, the Company Arsenal shall use its commercially reasonable efforts to file, as promptly as reasonably practicable, but not later than, than 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company Arsenal of such Demand Notice (subject to paragraph (e) of this Section 2.1except in connection with the Secondary Offering), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders Manchester (a “Demand Registration Statement”) and and, unless such Registration Statement shall be an automatic shelf registration statement, shall use its commercially reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities Except as contemplated by Section 2.2(b) of the Framework Agreement and except as set forth below, no Person other than the Holders designated by Manchester in the Demand Notice shall be included permitted to offer securities under any Demand Registration Statement related filed pursuant to an underwritten offering without this Section 2.1, unless Manchester consents in writing. Arsenal and any other holders of Arsenal Shares shall have a right to include Arsenal Shares in any Demand Registration Statement other than the written consent Demand Registration Statement to be filed in connection with the Secondary Offering (except as otherwise contemplated by Section 2.2(b) of the Holders’ RepresentativeFramework Agreement); provided, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentencehowever, that if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in such offering involves a firm commitment underwritten offering, offering and the managing underwriter(s) of such underwritten offering advise the Holders Arsenal, Manchester and such other holders in writing that it is their good faith opinion that the total number or dollar amount of Arsenal Shares requested by Arsenal (for its own account or the account of any other holder) to be so included, together with the Registrable Securities proposed that the Holders intend to be sold include in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securitiessecurities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Arsenal Shares and Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities securities shall be allocated for inclusion as follows:
(i) first, the all Registrable Securities for which inclusion in such demand offering was requested being sold by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among all Arsenal Shares requested to be included by Arsenal (for its own account or the account of any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such other holder).
(c) The Holders collectively Arsenal shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable any Demand Registration Statement for a period of at least one year sixty (60) days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For .
(d) Arsenal shall be obligated to effect up to three (3) Demand Registrations pursuant to this Section 2.1; provided, however, that (i) a Demand Notice that does not result in an effective registration under the avoidance Securities Act, or (ii) an offering of doubtany Registrable Securities pursuant to a Demand Registration Statement that is interfered with by any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity, in each case shall not be counted as a Demand Registration for purposes of this paragraph; provided, further, that (x) upon the closing of the Coniston Transaction, the foregoing sentence is not intended to limit the obligation Secondary Offering shall be counted as a Demand Registration for purposes of the Company to maintain the continuous effectiveness this paragraph and (y) a Demand Registration Statement that has been abandoned or withdrawn in accordance with paragraph (f) of the Short-Form this Section 2.1 shall be counted as a Demand Registration contemplated by Section 2.1(h) as required by Section 2.1(h)for purposes of this paragraph unless Manchester pays all Registration Expenses in connection with such abandoned or withdrawn registration.
(e) The Company Except in connection with the Secondary Offering, Arsenal shall be entitled to postpone (but not more than once twice in any six-month twelve (12)-month period), for a reasonable period of time not in excess of 60 an aggregate total of one hundred and twenty (120) days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month such period), the filing or initial effectiveness of, or suspend the use ofof (and the Holders participating in such offering hereby agree not to offer or sell any Registrable Securities pursuant to such registration statement during such postponement or suspension and to hold the existence and contents of such suspension and suspension notice confidential), a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the CompanyArsenal determines in good faith that, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company Arsenal or any imminent material transaction under consideration by the Company Arsenal or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would would, in the good faith judgment of Arsenal, materially adversely affect the CompanyArsenal.
(f) The Holders’ Representative Manchester shall have the right to notify the Company Arsenal that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company Arsenal shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 2 contracts
Sources: Registration Rights Agreement (Misys PLC), Registration Rights Agreement (Allscripts-Misys Healthcare Solutions, Inc.)
Demand Registrations. (a) At (i) Subject to Sections 2.1(b), 2.1(g) and 2.3, (x) at any time and from time to time, time any of the Holders’ Representative AEA Investors shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company toto file one (1) or more registration statements and (y) at any time and from time to time after the closing of an IPO, pursuant each of the OTPP Investors and the TCP Investors shall have the right to require the terms of this Agreement, register Company to file up to two (2) registration statements under and in accordance with the provisions of the Securities Act covering all or any part of their and their respective Affiliates’ Registrable Securities by delivering a written request therefor to the Company specifying the number of Registrable Securities owned to be included in such registration and the intended method of distribution thereof. Any such request by Holders a Sponsor Investor pursuant to this Section 2.1(a)(i) is referred to herein as a “Demand Registration Request,” and the registration so requested is referred to herein as a “Demand Registration” (with respect to any Demand Registration, the Sponsor Investor(s) making such demand for registration being referred to as the “Initiating Holders”). The AEA Investors shall be entitled to request (and the Company shall be required to effect) an unlimited number of Demand Registrations and, after the closing of an IPO, each of the OTPP Investors and the TCP Investors shall be entitled to request (and the Company shall be required to effect) up to two (2) Demand Registrations (in each case, it being understood that if a single Demand Registration Request is delivered by more than one Initiating Holder, the registration requested by such Demand Notice Registration Request shall constitute only one Demand Registration). Any Demand Registration Request made after the closing of an IPO may request that the Company register Registrable Securities on an appropriate form, including a shelf registration statement pursuant to be so registered Rule 415 under the Securities Act on Form S-3 (if the Company is eligible to file a shelf registration statement on Form S-3) or Form S-1 (any such shelf registration statement on Form S-3 or Form S-1, a “Demand RegistrationShelf Registration Statement”); provided, howeverand, that a Demand Notice may only be made if the amount Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act, a “WKSI”), an automatic shelf registration statement (as defined in Rule 405 under the Securities Act (an “automatic shelf registration statement”). The Company shall give written notice (the “Demand Exercise Notice”) of such Demand Registration Request (1) to each Holder of Registrable Securities requested to be registered is either (iother than individuals) at least 20% five (5) Business Days prior to the filing of any registration statement under the Securities Act and (2) to each Holder of Registrable Securities that is an individual, no more than five (5) Business Days after the filing of the aggregate registration statement under the Securities Act (or, in the case of a request for the filing of an automatic shelf registration statement, at least five (5) Business Days prior to the filing of such registration statement). Notwithstanding the foregoing, the Company may delay any Demand Exercise Notice, including until after filing a registration statement, so long as all recipients of such notice have the same amount of time to determine whether to participate in an offering as they would have had if such notice had not been so delayed.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities which shall have made a written request to the Company for inclusion in such registration pursuant to Section 2.2 (which request shall specify the maximum number of Registrable Securities then held intended to be disposed of by all Holders or such Participating Holder) within five (ii5) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify days following the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a any such Demand Exercise Notice, the .
(iii) The Company shall fileshall, as promptly expeditiously as reasonably practicablepossible, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.12.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to (x) file with the SEC (no later than forty-five (45) days from the Company’s receipt of the applicable Demand Registration Request) and cause such Registration Statement to be declared effective such registration under the Securities Act as promptly soon as reasonably practicable after (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the filing thereofSecurities Act if so requested and if the Company is then eligible to use such a registration) of the Registrable Securities which the Company has been so requested to register, for distribution in accordance with the intended method of distribution, including a distribution to, and registered resale by, the members, partners or other equity holders of a Holder (a “Partner Distribution”) and (y) if requested by the Initiating Holders, obtain acceleration of the effective date of the registration statement relating to such registration.
(iv) Notwithstanding anything contained herein to the contrary, the Company shall, at the request of any Holder seeking to effect or considering a Partner Distribution, file any prospectus supplement or post-effective amendments, or include in the initial registration statement any disclosure or language, or include in any prospectus supplement or post-effective amendment any disclosure or language, and otherwise take any action, deemed necessary or advisable by such Holder to effect such Partner Distribution.
(b) No securities shall be included under any Notwithstanding anything to the contrary in Section 2.1(a), the Demand Registration Statement related rights granted in Section 2.1(a) are subject to an underwritten offering without the written consent of following limitations: (i) the Holders’ Representative, except Registrable Securities requested Company shall not be required to be included therein cause a registration pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are ) to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for declared effective within a period of at least one year ninety (90) days after the effective date thereof of any other registration of the Company (or such shorter period one hundred eighty (180) days in which all the case of an IPO) filed pursuant to the Securities Act (other than a Form S-4 or Form S-8 or any successor or other forms promulgated for similar purposes or forms filed in connection with an exchange offer or any employee benefit or dividend reinvestment plan); (ii) each registration in respect of a Demand Registration Request made by any Holder must include, in the aggregate, Registrable Securities having an aggregate market value of at least the lesser of (a) the Minimum Threshold (based on the Registrable Securities included in such Registration Statement registration by all Holders participating in such registration) and (b) the market value of the Initiating Holder’s remaining Registrable Securities; and (iii) if the Board, in its good faith judgment, determines that any registration of Registrable Securities should not be made or continued because it would materially and adversely interfere with any existing or potential material financing, acquisition, corporate reorganization, merger, share exchange or other transaction or event involving the Company or any of its Subsidiaries or because the Company does not yet have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation appropriate financial statements of the Company or any acquired or to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
be acquired entities available for filing (e) The Company shall be entitled to postpone (but not more than once in any six-month periodeach case, a “Valid Business Reason”), for then (x) the Company may postpone filing a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, registration statement relating to a Demand Registration Statement if Request until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than forty-five (45) days after the date the Board determines a Valid Business Reason exists and (y) in case a registration statement has been filed relating to a Demand Registration Request, the Company delivers may, to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, extent determined in the good faith judgment of the Board of Directors to be reasonably necessary to avoid interference with any of the Companytransactions described above, suspend use of or, if required by the SEC, cause such registrationregistration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until five (5) Business Days after such Valid Business Reason no longer exists, offering but in no event for more than forty-five (45) days after the date the Board determines a Valid Business Reason exists (such period of postponement or withdrawal under this clause (iii), the “Postponement Period”). The Company shall give written notice to the Initiating Holders and any other Holders that have requested registration pursuant to Sections 2.1(a)(ii) or 2.2 of its determination to postpone or suspend use would reasonably be expected to materially adversely affect of or materially interfere with any bona fide withdraw a registration statement and imminent material financing of the Company fact that the Valid Business Reason for such postponement or any imminent material transaction under consideration by suspension or withdrawal no longer exists, in each case, promptly after the occurrence thereof; provided, however, the Company shall not be permitted to postpone or would require suspend use of or withdraw a registration statement after the disclosure expiration of information that has not been, and is not otherwise required any Postponement Period until twelve (12) months after the expiration of such Postponement Period. If the Company shall give any notice of postponement or suspension or withdrawal of any registration statement pursuant to be, disclosed to the publicclause (iii) above, the premature disclosure Company shall not, during the Postponement Period, register any Common Stock, other than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in effect). Each Holder of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify Registrable Securities agrees that, upon receipt of any notice from the Company that it the Company has determined that the Registration Statement relating to a Demand Registration be abandoned suspend use of, withdraw, terminate or withdrawnpostpone amending or supplementing any registration statement pursuant to clause (iii) above, in which event such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Company shall promptly abandon have suspended use of, withdrawn or withdraw such Registration Statement.
terminated a registration statement filed under Section 2.1(a)(i) (gwhether pursuant to clause (iii) No request for registration will count for the purposes above or as a result of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), the Company shall not be considered to have effected a Demand Registration for the purposes of this Agreement until the Company shall have permitted use of such suspended registration statement or filed a new registration statement covering the Registrable Securities covered by the withdrawn or terminated registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of suspension, withdrawal or postponement of a registration statement, the Company shall, not later than five (D5) more Business Days after the Valid Business Reason that caused such suspension, withdrawal or postponement no longer exists (but in no event later than 10% forty-five (45) days after the date of the suspension, postponement or withdrawal), as applicable, permit use of such suspended registration statement or use its reasonable best efforts to effect the registration under the Securities Act of the Registrable Securities requested covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the Initiating Holders shall have withdrawn such request, in which case the Company shall not be considered to have effected a Demand Registration for purposes of this Agreement and such request shall not count as a Demand Registration Request under this Agreement), and following such permission or such effectiveness such registration shall no longer be deemed to be suspended, withdrawn or postponed pursuant to clause (iii) of Section 2.1(b) above.
(c) In connection with any Demand Registration (including any Shelf Underwriting or Underwritten Block Trade), the AEA Investors shall have the right to designate the lead managing underwriter (any lead managing underwriter for the purposes of this Agreement, the “Manager”) in connection with any underwritten offering pursuant to such registration and each other managing underwriter for any such underwritten offering; provided that in each case (other than an Underwritten Block Trade), each such underwriter is reasonably satisfactory to the Company, which approval shall not be unreasonably withheld, conditioned or delayed.
(d) No Demand Registration shall be deemed to have occurred for purposes of Section 2.1(a) (i) if the registration statement relating thereto (x) does not become effective, (y) is not maintained effective for a period of at least one hundred eighty (180) days after the effective date thereof (or, with respect to a Shelf Registration Statement, three (3) years) or such shorter period during which all Registrable Securities included in such registration statement have actually been sold (provided, however, that such period shall be extended for a period of time equal to the period during which the Holders of Registrable Securities refrain from selling any securities included in such registration are not so included pursuant statement at the request of the Company or an underwriter of the Company) or (z) is subject to Section 2.1(b)a stop order, injunction, or similar order or requirement of the SEC during such period, (Eii) if the method of disposition is a firm commitment underwritten public offering and any of the applicable Registrable Securities have not been sold pursuant thereto or (iii) if the conditions to closing specified in any underwriting agreement, purchase agreement or purchase similar agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Initiating Holders). Notwithstanding anything to ) or are otherwise not waived by the contrary, the Company will pay all expenses Initiating Holders.
(e) Upon a Demand Registration Request made in accordance with Section 2.8) in connection with 2.1(a), at any request for registration pursuant to this Agreement regardless of whether or not time following such request counts toward the limitation set forth above.
(h) In addition to the foregoing, time as the Company will use its reasonable best efforts shall have become eligible to remain qualified for registration file a Shelf Registration Statement on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in accordance with Rule 405 415 under the Securities Act, (i) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall fileuse its best efforts to file a Shelf Registration Statement on Form S-3 in accordance with Rule 415 under the Securities Act and to effect and maintain in effect a Shelf Registration Statement on Form S-3 in accordance with this Section 2.1(e) (including, as promptly as reasonably practicable after the execution and delivery of this Agreementif requested by a Sponsor Investor, but not later than 30 days, such Short-Form Registration, which shall constitute filing a “shelf” replacement registration statement providing upon expiration of such Shelf Registration Statement), (ii) such Shelf Registration Statement shall provide for the registration of, and the sale an offer to be made on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities ActAct relating to the offer and sale, from time to permit time, of all of those Registrable Securities held by the distribution Sponsor Investors and Management Investors that are requested to be registered on such Shelf Registration Statement and (iii) the Sponsor Investors and Management Investors shall have the right at any time and from time to time to elect (without limitation on the number of such elections) to sell pursuant to an underwritten offering Registrable Securities available for sale pursuant to such Shelf Registration Statement. Any of the Sponsor Investors or Management Investors may make such election to sell Registrable Securities in accordance with by delivering to the methods Company a written request (a “Shelf Underwriting Request”) for such underwritten offering specifying the number of distribution elected by Registrable Securities that such Sponsor Investor or Management Investor, as the Holderscase may be, including by means desires to sell pursuant to such underwritten offering (the “Shelf Underwriting”). As promptly as practicable, but no later than two (2) Business Days after receipt of an underwritten offering. Upon filing a Short-Form RegistrationShelf Underwriting Request, the Company shall give written notice (the “Shelf Underwriting Notice”) of such Shelf Underwriting Request to the Holders of record of other Registrable Securities registered on such Shelf Registration Statement (“Shelf Registrable Securities”). The Company, subject to Sections 2.3 and 2.6, shall include in such Shelf Underwriting Notice (x) the Registrable Securities of the Sponsor Investors and Management Investors, as applicable, making such Shelf Underwriting Request and (y) the Shelf Registrable Securities of any other Holder of Shelf Registrable Securities which shall have made a written request to the Company for inclusion in such Shelf Underwriting (which request shall specify the maximum number of Shelf Registrable Securities intended to be disposed of by such Holder) within five (5) days after the receipt of the Shelf Underwriting Notice. The Company shall, as expeditiously as possible (and in any event within twenty (20) days after the receipt of a Shelf Underwriting Request), but subject to Section 2.1(b), use its reasonable best efforts to keep facilitate such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).Shelf Underwrit
Appears in 2 contracts
Sources: Registration Rights Agreement (Traeger, Inc.), Registration Rights Agreement (TGPX Holdings I LLC)
Demand Registrations. (a) At any time and from time to timetime following the last day of the Holding Period, the Holders’ Representative shall have the right by delivering one or more a written notices notice to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned Beneficially Owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that in respect of two out of the six Demand Registrations to which the Holders are entitled under this Agreement, a Demand Notice may only be made if the amount of Registrable Securities requested to be registered by the Holders’ Representative is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 5 million, it being understood that four out of the six Demand Registrations shall not be subject to such limitation. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. As promptly as practicable, but no later than 7 Business Days after receipt of a Demand Notice, the Company shall give written notice of such Demand Notice to all Holders of record of Registrable Securities. For purposes of determining the percentage and amount of Registrable Securities Beneficially Owned that are requested to be registered pursuant to this Section 2.1(a), Warrants requested to be registered shall be treated as the underlying shares of Common Stock for which such Warrants are exercisable.
(b) Following receipt of a Demand Notice, the Company shall use its reasonable best efforts to file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or than 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (ef) of this Section 2.1), a Registration Statement (including, without limitation, on (i) Form S-3 (or any comparable or successor form or forms or any similar short-form registration) by means of a shelf registration pursuant to Rule 415 under the Securities Act, if so requested and the Company is then eligible to use such a registration or (ii) Form S-1 (or any comparable or successor form or forms or any similar registration) by means of a shelf registration (the “Form S-1 Shelf Registration”) pursuant to Rule 415 under the Securities Act, if so required and the Company is eligible to incorporate by reference future Exchange Act filings pursuant to Item 12(b) of Form S-1 (or any similar successor form thereto), and, in each case of (i) and (ii) if there is no then-currently effective shelf registration statement on file with the SEC which would cover all the Registrable Securities requested to be registered) (a “Demand Registration Statement”) relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof Holders’ Representative and any other Holder of Registrable Securities which shall have made a written request to the Company for inclusion in such registration (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Selling Holder) within 20 days after the receipt of the Demand Notice (or 10 days if, at the request of the Holders’ Representative, the Company states in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form S-3), in accordance with the method or methods of distribution disposition of the applicable Registrable Securities elected by such Holders (a “Demand Registration Statement”) Holders, and the Company shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(bc) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if If any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by an Investor or its Affiliates, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder;
(ii) second, the Registrable Securities for which inclusion in such demand offering was requested by the other Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(iiiii) secondthird, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(cd) The Holders collectively shall be entitled to request no more than three six Demand Registrations of on the Company, and in no event shall the Company be required to effect more than one two Demand Registration Registrations in any six twelve-month period.
(de) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year 180 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt; provided, the foregoing sentence however, that nothing in this Section 2.1(e) is not intended to limit the obligation of the Company Company’s obligations to maintain the continuous effectiveness of Short Form Registrations in accordance with the Short-Form Registration contemplated by provisions of Section 2.1(h) as required by Section 2.1(h2.1(i).
(ef) The Subject to reduction in accordance with the definition of “Registrable Securities” and last sentence of Section 2.5, the Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 65 days (and not for periods exceeding, in the aggregate, 90 85 days during any twelve-twelve month period), the filing or initial effectiveness of, or suspend the use of, of a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and reasonably imminent material financing of the Company or any reasonably imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(fg) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(gh) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: if (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceedproceed or a misrepresentation or an omission by the applicable Holders), (C) prior to the sale or distribution of at least 9095% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, or (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable one or more Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.82.9) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(hi) In Subject to Section 2.5, in addition to the foregoingDemand Registrations provided pursuant to this Section 2.1, at all times following the last day of the Holding Period, the Company will use its reasonable best efforts to remain qualified qualify for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (including pursuant to Rule 415 under the Securities Act) (“Short-Form Registration”) and ); provided, that the Company shall file, as promptly as reasonably practicable after file a Short-Form Registration prior to the execution expiration of the Holding Period and delivery of this Agreement, but not later than 30 days, use reasonable efforts to cause such Short-Form Registration, which shall Registration to be effective upon the expiration of the Holding Period and constitute a “shelf” an effective shelf registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the HoldersHolders as of immediately upon the Expiration of the Holding Period. Unless the Company is eligible to file a Form S-1 Shelf Registration, including by means of an underwritten offeringin no event shall the Company be obligated to effect any shelf registration other than pursuant to a Short-Form Registration. Upon filing a Short-Form Registration or a Form S-1 Shelf Registration, the Company shall will use its reasonable best efforts to keep such Short-Form Registration or Form S-1 Shelf Registration effective with the SEC at all times (notwithstanding anything to the contrary in Section 2.1(d)) and any to refile such Short-Form Registration shall be re-filed or Form S-1 Shelf Registration upon its expiration, and the Company shall to cooperate in any shelf take-down by amending or supplementing the Prospectus prospectus statement related to such Short-Form Registration or Form S-1 Shelf Registration as may reasonably be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))Securities.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Moneygram International Inc)
Demand Registrations. (ai) At Subject to Sections 2.1(b) and 2.3, at any time and from time to time, following at least one (1) year after the Holders’ Representative effectiveness of the registration statement on Form S-4 of Splitco relating to the Split-Off and for so long as a Holder owns Registrable Securities, such Holder shall have the right by delivering to require Splitco to file one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register registration statements under and in accordance with the provisions of the Securities Act covering all or any part of its and its Affiliates’ Registrable Securities by delivering a written request therefor to Splitco specifying the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered included in such registration and the intended method of distribution therefor (a “Demand RegistrationRegistration Request”); provided. The registration so requested is referred to herein as a “Demand Registration” (with respect to any Demand Registration, however, that a the Holder(s) making such demand for registration being referred to as the “Initiating Holder(s)”).
(ii) Splitco shall give written notice (the “Demand Notice may only be made if Exercise Notice”) of such Demand Registration Request to the amount Holders of record of Registrable Securities requested (other than the Initiating Holder(s), as applicable) no later than five (5) Business Days after the filing of a registration statement pursuant to be registered is either the Demand Registration Request (ior, in the case of a request for the filing of an automatic shelf registration statement, five (5) at least 20% Business Days after receipt of the aggregate Demand Registration Request).
(b) Splitco, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities which shall have made a written request to Splitco for inclusion in such registration pursuant to Section 2.2 (which request shall specify the maximum number of Registrable Securities then held intended to be disposed of by all Holders or (ii) reasonably expected such Participating Holder on the same terms and pursuant to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected same intended method or methods of disposition as are set forth in the Demand Registration Request of the applicable Registrable Securities. Following Initiating Holder) within ten (10) days after the receipt of a the Demand Exercise Notice.
(c) Splitco shall, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.12.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to (x) as soon as reasonably practicable, but in no event later than sixty (60) days following receipt of a Demand Registration Request, file with the SEC the form and other necessary documents, and, as soon as reasonably practicable after such filing, use its best efforts to cause such Registration Statement to be declared effective such registration under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering including, without the written consent limitation, by means of the Holders’ Representative, except Registrable Securities requested to be included therein a shelf registration pursuant to Section 2.1(a). Subject Rule 415 under the Securities Act if so requested and if Splitco is then eligible to the preceding sentence, if any use such a registration) of the Registrable Securities registered pursuant which Splitco has been so requested to register, for distribution in accordance with such intended method of distribution, and (y) if requested by the Initiating Holders, request acceleration of the effective date of the registration statement relating to such registration.
(d) Any Initiating Holder and any other Holder that has requested its Registrable Securities be included in a Demand Registration are to be sold in may withdraw all or a firm commitment underwritten offering, and the managing underwriter(s) portion of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of its Registrable Securities proposed from such Demand Registration at any time prior to be sold in the effectiveness of the Demand Registration. Upon receipt of a notice to such offering, together effect (A) from the Initiating Holder and all other Holders with any Other Securities proposed respect to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution all of the Registrable Securities to be so included together with all by such Other Securities, then there shall be included Holders in such offering the number Demand Registration; or dollar amount of (B) from one or more Holders with respect to Registrable Securities held by them that would cause the anticipated aggregate offering price (after having subtracted all underwriting discounts and such Other Securities that commissions) to fall to $10 million or below, Splitco shall cease all effort to secure effectiveness of the applicable Demand Registration.
(e) Notwithstanding anything to the contrary in Section 2.1(a), the opinion of such managing underwriter(sDemand Registration rights granted in Section 2.1(a) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
are subject to the following limitations: (i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively Splitco shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company not be required to effect more than one (1) Demand Registration delivered by [·] pursuant to Section 2.1(a)(i) in any six nine (9) month period.
period (dit being understood that a registration pursuant to a Piggyback Request (as defined below) In by [·] shall not constitute a Demand Registration for the event purposes of this Section 2.1(f)(i)); (ii) each registration in respect of a Demand RegistrationRegistration Request made by any Holder must include, in the Company shall use its reasonable best efforts to maintain aggregate (based on the continuous effectiveness of the applicable Registration Statement for a period Splitco Common Stock included in such registration by all Holders and other Persons participating in such registration), Registrable Securities having an aggregate market value of at least one year after $10 million; and (iii) if the effective date thereof or such shorter period Board, in which all its good faith judgment, determines that any registration of Registrable Securities included should not be made or continued because it would materially interfere with any material financing, acquisition, corporate reorganization, merger, share exchange or other transaction or event involving Splitco or any Subsidiary and, in such Registration Statement each case, any successor thereto, or because Splitco does not yet have actually been sold. For the avoidance appropriate financial statements of doubtacquired or to be acquired entities available for filing (in each case, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month perioda “Valid Business Reason”), for then (x) Splitco may postpone filing a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, registration statement relating to a Demand Registration Statement Request until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than 120 days after the date the Board determines a Valid Business Reason exists and (y) in case a registration statement has been filed relating to a Demand Registration Request, if the Company delivers Valid Business Reason has not resulted from actions taken by Splitco, any Subsidiary, and, in each case, any successor thereto, Splitco may, to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, extent determined in the good faith judgment of the Board of Directors to be reasonably necessary to avoid interference with any of the Companytransactions described above, cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than 120 days after the date the Board determines a Valid Business Reason exists (such period of postponement or withdrawal under this clause (iii), the “Postponement Period”). Splitco shall give written notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, together with a certificate of such determination signed by the Chief Executive Officer or Chief Financial Officer of Splitco, in each case, promptly after the occurrence thereof; provided, however, that Splitco shall not be permitted to postpone or withdraw a registration statement after the expiration of any Postponement Period until twelve (12) months after the expiration of such Postponement Period. If Splitco shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (x) or (y) above, Splitco shall not, during the Postponement Period, register any Splitco Common Stock, other than pursuant to a Special Registration Statement. Each Holder of Registrable Securities agrees that, upon receipt of any notice from Splitco that Splitco has determined to withdraw, terminate or postpone amending or supplementing any registration statement pursuant to clause (x) or (y) above, such registration, offering or use would reasonably be expected Holder will discontinue its disposition of Registrable Securities pursuant to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative such registration statement. If Splitco shall have the right withdrawn or prematurely terminated a registration statement filed under Section 2.1(a)(i) (whether pursuant to notify the Company that it has determined that the Registration Statement relating to clause (iii) above or as a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes result of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), (D) more than 10% Splitco shall not be considered to have effected an effective registration for the purposes of this Agreement until Splitco shall have filed a new registration statement covering the Registrable Securities requested covered by the Holders to be included withdrawn or terminated registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If Splitco shall give any notice of withdrawal or postponement of a registration statement, Splitco shall, not later than five (5) Business Days after the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event later than 120 days after the registration are not so included pursuant to Section 2.1(bdate of the postponement or withdrawal), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for effect the registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities ActAct of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the Initiating Holders shall have withdrawn such request, in which case Splitco shall not be considered to have effected an effective registration for the purposes of this Agreement), and such registration shall not thereafter be withdrawn or postponed pursuant to clause (x) or (y) of this Section 2.1(e).
(f) In connection with any comparable or successor form or forms or Demand Registration, the Participating Holders shall have the right to designate the lead managing underwriter (any similar short-form registration (“Short-Form Registration”) and lead managing underwriter for the Company shall file, as promptly as reasonably practicable after the execution and delivery purposes of this Agreement, but not later than 30 daysthe “Manager”) in connection with any underwritten offering pursuant to such registration and each other managing underwriter for any such underwritten offering; provided, that, such Short-Form Registrationunderwriter is reasonably satisfactory to Splitco, which approval shall constitute not be unreasonably withheld or delayed.
(g) The obligation to effect a “shelf” Demand Registration as described in this Section 2.1 shall be deemed satisfied only when a registration statement providing for covering the applicable Registrable Securities shall have become effective (unless, after effectiveness, the registration ofstatement becomes subject to any stop order, and injunction or other order of the sale on SEC or other governmental agency, in which case the obligation shall not be deemed satisfied) and, if the method of disposition is a continuous or delayed basis firm commitment underwritten public offering, all such Registrable Securities have been sold pursuant thereto.
(notwithstanding h) Notwithstanding anything to the contrary in Section 2.1(d)) ofherein, at such time as Splitco shall have qualified for the Registrable Securities, pursuant to Rule 415 use of Form S-3 promulgated under the Securities ActAct or any successor form thereto and in the event that Splitco files a shelf registration statement under Rule 415 of the Securities Act pursuant to a Demand Registration Request and such shelf registration statement on Form S-3 becomes effective (such registration statement, a “Shelf Registration Statement”), the Initiating Holders with respect to permit such Demand Registration Request and the Holders of other Registrable Securities registered on such Shelf Registration Statement shall have the right at any time or from time to time to elect to sell pursuant to an underwritten offering Registrable Securities available for sale pursuant to such registration statement (“Shelf Registrable Securities”), so long as the Shelf Registration Statement remains in effect and only if the method of distribution set forth in the shelf registration allows for sales pursuant to an underwritten offering.
(i) The Initiating Holders and such other Holders shall make such election by delivering to Splitco a written request (a “Shelf Underwriting Request”) for such underwritten offering to Splitco specifying the number of Shelf Registrable Securities that the Holders desire to sell pursuant to such underwritten offering (the “Shelf Underwriting”). As promptly as practicable, but no later than five (5) Business Days after receipt of a Shelf Underwriting Request, Splitco shall give written notice (the “Shelf Underwriting Notice”) of such Shelf Underwriting Request to all other Holders of record of Shelf Registrable Securities. Splitco, subject to Sections 2.3 and 2.6, shall include in such Shelf Underwriting (x) the Registrable Securities of the Initiating Holders and (y) the Shelf Registrable Securities of any other Holder of Shelf Registrable Securities which shall have made a written request to Splitco for inclusion in accordance with such Shelf Underwriting (which request shall specify the methods maximum number of distribution elected Shelf Registrable Securities intended to be disposed of by such Holder) within seven (7) days after the Holdersreceipt of the Shelf Underwriting Notice. Splitco shall, including by means as expeditiously as possible (and in any event within twenty (20) days after the receipt of an underwritten offering. Upon filing a Short-Form RegistrationShelf Underwriting Request), the Company shall but subject to Section 2.1(b), use its reasonable best efforts to keep facilitate such Short-Form Shelf Underwriting. Notwithstanding the foregoing, if an Investor Shareholder wishes to engage in an underwritten block trade off of a Shelf Registration effective with Statement (either through filing an automatic shelf registration statement or through a take down of an already existing Shelf Registration Statement), then notwithstanding the SEC at all times foregoing time periods, the Investor Shareholder only needs to notify the Company of the block trade Shelf Underwriting on the day such offering is to commence and any Short-Form Registration the Company shall be re-filed upon its expirationnotify other Holders and other Holders must elect whether or not to participate on the day such offering is to commence, and the Company shall cooperate as expeditiously as possible use its reasonable best efforts (including co-operating with such Investor Shareholder with respect to the provision of necessary information) to facilitate such shelf offering (which may close as early as three (3) business days after the date it commences), provided, that in the case of such underwritten block trade, only Investor Shareholders shall have a right to notice and to participate, and provided, further, that the Investor Shareholder requesting such underwritten block trade shall use commercially reasonable efforts to work with the Company and the underwriters prior to making such request in order to facilitate preparation of Offering Documents relating to the underwritten block trade. Splitco shall, at the request of any Initiating Holder or any other Holder of Registrable Securities registered on such Shelf Registration Statement, file any prospectus supplement or, if the applicable Shelf Registration Statement is an automatic shelf takeregistration statement (as defined in Section 2.4), any post-down effective amendments and otherwise take any action necessary to include therein all disclosure and language deemed necessary or advisable by amending or supplementing Splitco to effect such Shelf Underwriting. Once a Shelf Registration Statement has been declared effective, the Prospectus related Holders of Registrable Securities may request, and Splitco shall be required to facilitate, an unlimited number of Shelf Underwritings with respect to such Short-Form Shelf Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding Statement. Notwithstanding anything to the contrary in this Section 2.1(d2.1(j), each Shelf Underwriting must include, in the aggregate (based on the Splitco Common Stock included in such Shelf Underwriting by all Holders and other Persons participating in such Shelf Underwriting), shares of Splitco Common Stock having an aggregate market value of at least $10 million. Splitco agrees to use commercially reasonable efforts to keep each Shelf Registration Statement continuously effective until the earliest to occur of (i) the date specified by the Shelf Requesting Holder, if any, (ii) the day after the date on which all Registrable Securities covered by such Shelf Registration Statement have been sold pursuant to such Shelf Registration Statement, and (iii) the first date on which there shall cease to be any Registrable Securities covered by such Shelf Registration Statement.
Appears in 2 contracts
Sources: Reorganization Agreement (Fidelity National Financial, Inc.), Reorganization Agreement (Cannae Holdings, Inc.)
Demand Registrations. (a) At any time and from time to time, the Holders’ Representative shall have the right by delivering one or more written notices Subject to the Company provisions and limitations of this Section 2.1, if following the six month anniversary of the date hereof the Corporation shall receive a written request (each, a “Demand Registration Notice”) to require from the Company to, pursuant to BlackRock Members or the terms of this Agreement, register Highfields Members (an “Initiating Holder”) that the Corporation effect a Registration Statement under and in accordance with the provisions of the Securities Act of the number of Registrable Securities owned by Holders and requested held by such Demand Notice to be so registered Sponsor Members on the date thereof (a “Demand Registration”); provided, howeverthen the Corporation shall, subject to the limitations of this Section 2.1, use its commercially reasonable efforts to effect the registration under the Securities Act of all Registrable Securities that a such Initiating Holder requests to be registered.
(b) A Demand Registration Notice may only be made if shall specify (i) the amount number of Registrable Securities requested to be registered is either registered, (iii) at least 20% the anticipated per share price range for such offering (which range may be revised from time to time by the Initiating Holder by written notice to the Corporation to that effect), (iii) the intended methods of disposition and the name of the aggregate lead underwriter, if available, and (iv) subject to Section 2.1(f), whether such registration shall be a “shelf” registration pursuant to Rule 415 under the Securities Act (a “Shelf Registration”).
(c) Within 10 days after receipt of a Demand Registration Notice, the Corporation shall give written notice (a “Registration Notice”) of the requested registration to all other Holders that are holders of Registrable Securities (the “Other Holders”) and shall include in such registration all Registrable Securities with respect to which the Corporation has received written requests indicating the Other Holder and the number of Registrable Securities then held by all Holders or (ii) reasonably expected that such Other Holder elects to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify include in such registration within 20 days after the expected method or methods of disposition receipt of the applicable Registrable SecuritiesRegistration Notice. Following receipt The Corporation shall, as soon as practicable, and in any event within 90 days after the date of a the Demand Registration Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), file a Registration Statement relating under the Securities Act covering all Registrable Securities that the Initiating Holder requested to the offer and sale of the be registered, any additional Registrable Securities requested to be included therein in such registration by any Other Holders, as specified by notice given timely by each such Other Holders to the Holders thereof in accordance with Corporation, and any securities of the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement Corporation proposed to be declared effective under the Securities Act as promptly as practicable after the filing thereofincluded in such registration by holders of registration rights granted other than pursuant to this Agreement (“Other Registration Rights”).
(bd) No A Demand Registration Notice (other than a Demand Registration Notice with respect to a Demand Registration that constitutes a Shelf Registration on Form S-3) shall only be binding on the Corporation if the sale of all Registrable Securities requested to be registered (pursuant to such Demand Registration Notice and in response to the Demand Registration Notice) is reasonably expected to result in aggregate gross proceeds in excess of $25,000,000.
(e) If the managing underwriter advises the Corporation, in writing, that in its opinion the number of Registrable Securities and, if permitted hereunder, other securities shall requested to be included under any Demand Registration Statement related to an underwritten in such offering exceeds the number of Registrable Securities and other securities, if any, which can be sold therein without adversely affecting the written consent Corporation or the marketability of the Holders’ Representativeoffering, except the Corporation shall include in such registration (i) first, the quantity of Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to in such Demand Registration, pro rata among the preceding sentence, if any respective holders thereof on the basis of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed requested to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities registration by each such holder and (ii) second, other securities requested to be included in such Other Securities that registration, which in the opinion of such managing underwriter(s) underwriters can be sold without so adversely affecting such the Corporation or the marketability of the offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based among the respective holders thereof on the basis of the number of Registrable Securities Beneficially Owned by each shares requested to be included in such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned registration by each such holder. Any Person (other than Holders of Registrable Securities) that participates in Demand Registrations which are not at the Corporation’s expense must pay their share of any Registration Expenses.
(cf) The Holders collectively Notwithstanding any other provisions of this Section 2.1, in no event shall either the BlackRock Members or the Highfields Members be entitled permitted to (i) request no more than three Demand Registrations in any twelve-month period or within 120 days after the effective date of a Registration Statement filed by the Corporation; provided that no Demand Registration may be prohibited for such 120-day period more than once in a twelve-month period; or (ii) request a Demand Registration if, at the time such request is made, a Shelf Registration is effective and both includes all of the CompanyRegistrable Securities of such Sponsor Member and permits an underwritten offering of such Registrable Securities.
(g) The Corporation shall be entitled to postpone (but not more than once in any twelve-month period), for a reasonable period of time not in excess of 60 days, the filing of a Registration Statement (including Shelf Registration) if the Corporation delivers to the Initiating Holder a resolution of the Board that, in the good faith judgment of the Board, such registration and offering would reasonably be expected to materially adversely affect any bona fide material financing of the Corporation or any material transaction under consideration by the Corporation or would require disclosure of information that has not been disclosed to the public and is not otherwise required to be disclosed at that time that would reasonably be expected to materially adversely affect the Corporation. Such Board resolution shall contain a statement of the reasons for such postponement and an approximation of the anticipated delay. The Holders receiving such resolution shall keep the information contained in such resolution confidential. If the Corporation shall so postpone the filing of a Registration Statement, the Holder who made the Demand Registration shall have the right to withdraw the request for registration by giving written notice to the Corporation within 20 days of the anticipated termination date of the postponement period, as provided in such resolution delivered to the Holders, and in no the event of such withdrawal, such request shall not be counted for purposes of the Company number of Demand Registrations to which such Holder is entitled pursuant to the terms herein.
(h) If the Corporation has filed a Shelf Registration Statement and has included Registrable Securities therein, the Corporation shall be entitled to suspend (but not more than an aggregate of 90 days in any twelve-month period), for a reasonable period of time not in excess of 90 days, the offer or sale of Registrable Securities pursuant to such Registration Statement by any Holder of Registrable Securities if (i) a “road show” is not then in progress with respect to a proposed offering of Registrable Securities by such Holder pursuant to such Registration Statement and such Holder has not executed an underwriting agreement with respect to a pending sale of Registrable Securities pursuant to such Registration Statement and (ii) the Corporation delivers to the Holders included in such Registration Statement a resolution of the Board that, in the good faith judgment of the Board, such offer or sale would reasonably be expected to materially adversely affect any bona fide material financing of the Corporation or any material transaction under consideration by the Corporation or would require disclosure of information that has not been disclosed to the public and is not otherwise required to be disclosed at that time that would reasonably be expected to materially adversely affect the Corporation. Such Board resolution shall contain a statement of the reasons for such postponement and an approximation of the anticipated delay. The Holders receiving such resolution shall keep the information contained in such certificate confidential.
(i) The Corporation shall be required to effect more than one maintain the effectiveness of a Registration Statement (except in the case of a Shelf Registration) with respect to any Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year 180 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold; provided, however, 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 at the request of (x) an underwriter or (y) the Corporation pursuant to the provisions herein. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company The Corporation shall be required to maintain the continuous effectiveness of the Short-Form a Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled Statement that is a Shelf Registration with respect to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if at all times after the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, effective date thereof until all Registrable Securities included in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand have actually been sold; provided, however, that any Holder of Registrable Securities whose shares have been included in such Shelf Registration may request that such Registrable Securities be abandoned or withdrawnremoved from such Registration Statement, in which event the Company Corporation shall promptly abandon or either withdraw such Registration StatementStatement or file a post-effective amendment to such Registration Statement removing such Registrable Securities.
(gj) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything contained herein to the contrary, the Company will pay Corporation hereby agrees that (i) each Demand Registration that is a Shelf Registration shall contain all expenses language (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward including on the limitation set forth above.
(h) In addition to the foregoingProspectus cover sheet, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) principal stockholders’ table and the Company shall file, as promptly as reasonably practicable after the execution and delivery plan of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)distribution) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by a Holder of Registrable Securities to allow for a distribution to, and resale by, the Holders’ Representative direct and indirect partners, members or as otherwise required, until the Holders no longer hold stockholders of a Holder of Registrable Securities (a “Partner Distribution”) and (ii) the Corporation shall, at the reasonable request of any Holder of Registrable Securities seeking to effect a Partner Distribution, file any prospectus supplement or post-effective amendments and otherwise take any action reasonably necessary to include such language, if such language was not included in each casethe initial Registration Statement, notwithstanding anything or revise such language if deemed reasonably necessary by such Holder to effect such Partner Distribution.
(k) The Initiating Holders shall have the right to select the investment banker and manager to administer the offering relating to such Demand Registration, subject to the contrary approval of the Board, which shall not be unreasonably withheld, delayed or conditioned.
(l) For purposes of this Section 2.1, a registration shall not be counted as “effected” and shall not be considered a Demand Registration if, as a result of an exercise of any cutback, fewer than a majority of the total number of Registrable Securities that the Initiating Holder has requested to be included in Section 2.1(d))such Registration Statement are actually included.
Appears in 2 contracts
Sources: Registration Rights Agreement (Pennymac Financial Services, Inc.), Registration Rights Agreement (Pennymac Financial Services, Inc.)
Demand Registrations. (a) At From and after the expiration of the First Step Restricted Period (subject, in the case of the KKR Investors, to the Pre-Second Step Restricted Period) and/or the Second Step Restricted Period, as applicable, subject to the terms and conditions hereof (x) solely during any time and from time period that the Company is then-ineligible under Applicable Law to timeregister Registrable Securities on Form S-3 pursuant to Section 5.3 or, if the Holders’ Representative Company is so eligible but has failed to comply with its obligations under Section 5.3 or (y) following the expiration of the Company’s obligation to keep the Shelf Registration Statement continuously effective pursuant to Section 5.3(c), but only if there is no Shelf Registration Statement then in effect, any Demand Shareholders (“Requesting Shareholders”) shall have the right by delivering one or more be entitled to make an unlimited number of written notices to requests of the Company (each, a “Demand NoticeDemand”) to require for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders that equals or is greater than the Registrable Amount (a “Demand Registration”). Thereupon the Company towill, pursuant subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register under and by the Requesting Shareholders for disposition in accordance with the provisions intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which the Securities Act Company has been requested to register pursuant to Section 5.1(b), but subject to Section 5.1(g); and
(iii) all shares of Company Common Stock which the number Company may elect to register in connection with any offering of Registrable Securities owned by Holders pursuant to this Section 5.1, but subject to Section 5.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and requested by such Demand Notice the additional shares of Company Common Stock, if any, to be so registered registered.
(a “b) A Demand Registration”); provided, however, that a Demand Notice may only be made if shall specify: (i) the amount aggregate number of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or in such Demand Registration, (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected intended method or methods of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the applicable Registrable SecuritiesRequesting Shareholder(s). Following Within ten (10) days after receipt of a Demand NoticeDemand, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days give written notice of such Demand to all other holders of Registrable Securities. The Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by which the Company of such Demand Notice has received a written request for inclusion therein within ten (10) days after the Company’s notice required by this paragraph has been given, subject to paragraph (e) Section 5.1(g). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2.15.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one A Demand Registration in any six month period.
(d) In the event of shall not be deemed to have been effected and shall not count as a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement (i) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least one year after the effective date thereof hundred eighty (180) days or such shorter period in which all Registrable Securities included in such Demand Registration Statement have actually been sold. For sold thereunder (provided, that such period shall be extended for a period of time equal to the period the holder of Registrable Securities refrains from selling any securities included in such registration statement at the request of the Company or the lead managing underwriter(s) pursuant to the provisions of this Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to one hundred eighty (180) days after effectiveness, to any stop order, injunction or other order or requirement of the Commission or other Governmental Authority, other than by reason of any act or omission by the applicable Selling Shareholders.
(d) Demand Registrations shall be on such appropriate registration form of the Commission as shall be selected by the Company and reasonably acceptable to the Requesting Shareholders.
(e) The Company shall not be obligated to (i) subject to Section 5.1(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration, for a period longer than one hundred eighty (180) days or (ii) effect any Demand Registration (A) within six (6) months of a “firm commitment” Underwritten Offering in which all Demand Shareholders (as hereinafter defined) were offered “piggyback” rights pursuant to Section 5.2 (subject to Section 5.2(b)) and at least 50% of the number of Registrable Securities requested by such Demand Shareholders to be included in such Demand Registration were included, (B) within six (6) months of the completion of any other Demand Registration (including, for the avoidance of doubt, any Underwritten Offering pursuant to any Shelf Registration Statement) or (C) if, in the foregoing sentence Company’s reasonable judgment, it is not intended to limit the obligation of feasible for the Company to maintain proceed with the continuous effectiveness Demand Registration because of the Short-Form Registration contemplated by Section 2.1(h) unavailability of audited or other required financial statements; provided, that the Company shall use its reasonable best efforts to obtain such financial statements as required by Section 2.1(h)promptly as practicable.
(ef) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in upon written notice to the aggregate, 90 days during any twelve-month period), Demand Shareholders) the filing or initial the effectiveness of, or suspend the use of, of a registration statement for any Demand Registration Statement if in the event of a Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period under clause (ii) of the definition thereof, the Company delivers shall deliver to the Holders’ Representative Demand Shareholders requesting registration a certificate signed by both either the Chief Executive Officer and Chief Financial Officer chief executive officer or the chief financial officer of the Company certifying that, in the good faith judgment of the Board of Directors Board, the conditions described in clause (ii) of the Companydefinition of Blackout Period are met. Such certificate shall contain an approximation of the anticipated delay.
(g) If, in connection with a Demand Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its (their) opinion, the inclusion of all of the securities sought to be registered in connection with such registration, offering or use Demand Registration would reasonably be expected to materially adversely affect or materially interfere with any bona fide the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and imminent material financing in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Demand Shareholders, which, in the opinion of the lead managing underwriter(s), can be sold without adversely affecting the success thereof, pro rata among such Demand Shareholders on the basis of the number of such Registrable Securities requested to be included by such Demand Shareholders; (ii) second, up to the number of Registrable Securities requested to be included in such Demand Registration by other holders of Registrable Securities, pro rata on the basis of the amount of such Registrable Securities requested to be included by such holders; (iii) third, securities the Company proposes to sell; and (iv) fourth, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or any imminent material transaction under consideration such other allocation method determined by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(fh) The Holders’ Representative shall have the right to notify the Company Any time that it has determined that the Registration Statement relating to a Demand Registration involves an Underwritten Offering, the Requesting Shareholder(s) shall select the investment banker(s) and manager(s) that will serve as managing underwriters (including which such managing underwriters will serve as lead or co-lead) and underwriters with respect to the offering of such Registrable Securities; provided, that such investment banker(s) and manager(s) shall be abandoned or withdrawn, in which event reasonably acceptable to the Company shall promptly abandon or withdraw (such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is acceptance not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b)unreasonably withheld, conditioned or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)delayed).
Appears in 2 contracts
Sources: Shareholder Agreement (Walgreen Co), Purchase and Option Agreement (Walgreen Co)
Demand Registrations. (a) At If requested by the underwriters for any time and from time to time, the Holders’ Representative shall have the right Underwritten Offering requested by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number Holders of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offeringunder Section 5.1 or 5.2, and the managing underwriter(s) of Company shall enter into an underwriting agreement with such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in underwriters for such offering, together with any Other Securities proposed such agreement to be included by holders thereof which are entitled satisfactory in substance and form to include securities in such Registration Statement, exceeds the total number or dollar amount Holders of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution a majority of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offeringunderwriting, and to contain such number of Registrable Securities representations and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration warranties by the Company or would require the disclosure and such other terms as are generally prevailing in agreements of information that has not beentype, and is not otherwise required to be, disclosed including indemnities no less favorable to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations recipient thereof than those provided in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable 5.3. The Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included proposed to be distributed by such underwriters shall cooperate with the Company in the applicable registration relating negotiation of the underwriting agreement and shall give consideration to the reasonable suggestions of the Company regarding the form thereof. Such Holders of Registrable Securities to be distributed by such underwriters shall be parties to such requestunderwriting agreement, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any which underwriting agreement or purchase agreement entered into in connection with shall (i) contain such representations and warranties by, and the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by agreements on the applicable Holders). Notwithstanding anything to the contrarypart of, the Company will pay to and for the benefit of such Holders of Registrable Securities as are customarily made by issuers to selling stockholders in secondary underwritten public offerings and (ii) provide that any or all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition conditions precedent to the foregoing, obligations of such underwriters under such underwriting agreement also shall be conditions precedent to the obligations of such Holders of Registrable Securities. Any such Holder of Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (includingor the underwriters other than representations, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) warranties or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 daysagreements regarding such Holder, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything Holder’s title to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods such Holder’s intended method of distribution elected and any other representations required to be made by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expirationHolder under applicable law, and the Company aggregate amount of the liability of such Holder shall cooperate not exceed such Holder’s net proceeds from such Underwritten Offering and with respect to liability for information, shall be limited to information provided by such Holder in any shelf take-down by amending or supplementing writing for use in the related Prospectus related to such Short-Form and Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))Statement.
Appears in 2 contracts
Sources: Shareholder Agreements, Joint Written Consent (Hawker Beechcraft Notes Co)
Demand Registrations. (a) At If requested by the underwriters for any time and from time to time, the Holders’ Representative shall have the right Underwritten Offering requested by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, any Participating Holder pursuant to the terms of this Agreement, register a Registration under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand NoticeSection 2.01, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days enter into an underwriting agreement with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in underwriters for such offering, together with any Other Securities proposed such agreement to be included by holders thereof which are entitled to include securities reasonably satisfactory in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities substance and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating form to the Company, (B) each Participating Holder and the Registration Statement relating underwriters, and to contain such request is not declared effective within 60 days representations and warranties by the Company and such other terms as are generally prevailing in agreements of that type, including indemnities no less favorable to the recipient thereof than those provided in Section 2.09. Each Participating Holder shall cooperate reasonably with the Company in the negotiation of such underwriting agreement and shall give consideration to the reasonable suggestions of the date Company regarding the form thereof. Any such Registration Statement is first filed with Participating Holder shall be required to make representations or warranties to, and other agreements with, the SEC (other than solely by reason of Company and the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into underwriters in connection with the registration relating to such request underwriting agreement as are not satisfied customarily made by selling stockholders in secondary underwritten public offerings, including representations, warranties or agreements regarding such Participating Holder (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or but not such request counts toward Participating Holder’s knowledge about the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 daysCompany), such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything Participating Holder’s title to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant such Participating Holder’s authority to Rule 415 under the Securities Act, to permit the distribution of sell the Registrable Securities, such Participating Holder’s intended method of distribution, absence of liens with respect to the Registrable Securities, receipt of all required consents and approvals with respect to the entry into such underwriting agreement and the sale of such Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall other representations required to be re-filed upon its expirationmade by such Participating Holder under applicable law, rule or regulation, and the Company aggregate amount of the liability of such Participating Holder in connection with such underwriting agreement shall cooperate in not exceed such Participating Holder’s net proceeds after underwriting commissions and discounts (but before any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as taxes and expenses which may be reasonably requested payable by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))such Participating Holder) from such Underwritten Offering.
Appears in 2 contracts
Sources: Registration Rights Agreement (SEACOR Marine Holdings Inc.), Registration Rights Agreement (Seacor Holdings Inc /New/)
Demand Registrations. (a) At Subject to the terms and conditions of this Agreement, at any time and from time to timetime after the delivery by ICN to the Company of a written notice pursuant to Section 3.4 of the Affiliation and Distribution Agreement between the Company and ICN dated as of the date hereof that ICN no longer intends to proceed with or complete the Distribution (the "Registration Rights Trigger Date"), the Holders’ Representative Holders shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act covering all or any part of their Registrable Securities on six (6) separate occasions in the aggregate, by delivering a written request therefor to the Company specifying the number of Registrable Securities owned by Holders to be included in such registration and the intended method of distribution thereof (including, but not limited to, an underwritten offering). All such requests pursuant to this Section 2.1(a) are referred to herein as "Demand Registration Requests," and the registrations so requested by are referred to herein as "Demand Registrations" (with respect to any Demand Registration, the Holder making such demand for registration being referred to as the "Initiating Holder"). As promptly as practicable, but no later than ten days after receipt of a Demand Registration Request, the Company shall give written notice (the "Demand Exercise Notice") of such Demand Notice Registration Request to be so registered all other Holders of record of Registrable Securities.
(a “Demand Registration”); providedb) The Company, howeversubject to Sections 2.3 and 2.6, that shall include in a Demand Notice may only be made if Registration (x) the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate Initiating Holder and (y) the Registrable Securities of any other Holder which shall have made a written request to the Company for inclusion in such registration (which request shall specify the maximum number of Registrable Securities then held intended to be disposed of by all Holders or (iisuch Holder) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify within 10 days after the expected method or methods of disposition receipt of the applicable Registrable Securities. Following receipt of a Demand Exercise Notice, the .
(c) The Company shall fileshall, as promptly expeditiously as reasonably practicablepossible, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause (x) effect such Registration Statement to be declared effective registration under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering including, without the written consent limitation, by means of the Holders’ Representative, except Registrable Securities requested to be included therein a shelf registration pursuant to Section 2.1(a). Subject Rule 415 under the Securities Act if so requested and if the Company is then eligible to the preceding sentence, if any use such a registration) of the Registrable Securities registered pursuant which the Company has been so requested to a Demand Registration are to be sold register, for distribution in a firm commitment underwritten offeringaccordance with such intended method of distribution, and the managing underwriter(s(y) of such underwritten offering advise the Holders in writing that it if requested by ICN, if ICN is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold participating in such offeringregistration, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was if requested by the HoldersInitiating Holder, pro rata (if applicable)ICN is not participating in such registration, based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations obtain acceleration of the Company, and in no event shall effective date of the Company be required registration statement relating to effect more than one Demand Registration in any six month periodsuch registration.
(d) In The Demand Registration rights granted in Section 2.1(a) to the event Holders are subject to the following limitations: (i) with respect to any registration in respect of a Demand RegistrationRegistration Request initiated by a transferee of ICN, such registration statement must include shares of Common Stock representing in excess of 20% of the Registrable Securities then outstanding; (ii) the Company shall use its reasonable best efforts not be required to maintain the continuous effectiveness of the applicable Registration Statement for cause a registration pursuant to Section 2.1(a) to be declared effective within a period of at least one year 180 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation any registration statement of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once effected in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, connection with a Demand Registration Statement Request; and (iii) if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registrationin its good faith judgment, offering determines that any registration of Registrable Securities should not be made or use continued because it would reasonably be expected to materially adversely affect or (A) materially interfere with any bona fide and imminent material financing of financing, acquisition, corporate reorganization or merger or other transaction involving the Company or any imminent of its subsidiaries; or (B) require under applicable law disclosure of material transaction under consideration by non-public information and such disclosure at that time would be materially detrimental to the Company or would require the disclosure of information that has not been(each, and is not otherwise required to be, disclosed to the publica "Valid Business Reason"), the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement may postpone filing a registration statement relating to a Demand Registration Request, cause such registration statement to be abandoned withdrawn and its effectiveness terminated or withdrawnmay postpone amending or supplementing such registration statement until such Valid Business Reason no longer exists, but in which no event for more than three months (such period of postponement or withdrawal, the "Postponement Period"); and the Company shall promptly abandon give written notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such Registration Statementpostponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof; provided, however, the Company shall not be permitted to postpone or withdraw a registration statement after the expiration of any Postponement Period until six months after the expiration of such Postponement Period without the prior written approval of ICN.
(ge) No request for If the Company shall give any notice of postponement or withdrawal of any registration will count for statement, the purposes Company shall not, during the period of postponement or withdrawal, register any Common Stock, other than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in effect). Each Holder of Registrable Securities agrees that, upon receipt of any notice from the limitations in Section 2.1(c) if: (A) Company that the Holders’ Representative determines in good faith Company has determined to withdraw the proposed any registration prior statement pursuant to the effectiveness clause (iii) above, such Holder will discontinue its disposition of the Registration Statement relating Registrable Securities pursuant to such request due to marketing conditions or regulatory reasons relating to registration statement and, if so directed by the Company, will deliver to the Company (Bat the Company's expense) the Registration Statement relating to all copies, other than permanent file copies, then in such request is not declared effective within 60 days Holder's possession of the date prospectus covering such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included that was in effect at the applicable time of receipt of such notice. If the Company shall have withdrawn or prematurely terminated a registration relating statement filed under Section 2.1(a) (whether pursuant to such request, such registration is adversely affected by Section 2.1(d)(iii) or as a result of any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement (Dincluding, without limitation, for purposes of Section 2.1(c) more than 10% of above) until the Company shall have filed a new registration statement covering the Registrable Securities requested covered by the Holders to be included in withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the registration are not so included pursuant to Section 2.1(b), Company shall give any notice of withdrawal or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result postponement of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contraryregistration statement, the Company will pay all expenses shall, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless no event later than three months after the date of whether the postponement or not such request counts toward the limitation set forth above.
(h) In addition to the foregoingwithdrawal), the Company will use its reasonable best efforts to remain qualified effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the Initiating Holder shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for registration on Form S-3 (the purposes of this Agreement, including, without limitation, if availablefor purposes of Section 2.1(c) above).
(f) The Company, an automatic shelf subject to Sections 2.3 and 2.6, may elect to include in any registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Actand offering made pursuant to Section 2.1(a), (i) authorized but unissued shares of Common Stock or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and shares of Common Stock held by the Company shall file, as promptly as reasonably practicable treasury shares and (ii) any other shares of Common Stock which are requested to be included in such registration pursuant to the exercise of piggyback rights granted by the Company after the execution and delivery of this Agreementdate hereof which are not inconsistent with the rights granted in, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for or otherwise conflict with the registration terms of, and the sale on a continuous or delayed basis this Agreement (notwithstanding anything "Additional Piggyback Rights") provided, however, that such inclusion shall be permitted only to the contrary in Section 2.1(d)) of, the Registrable Securities, extent that it is pursuant to Rule 415 under and subject to the Securities Act, to permit the distribution terms of the Registrable Securities in accordance with the methods of distribution elected underwriting agreement or arrangements, if any, entered into by the Holders, including by means of Initiating Holder.
(g) In connection with any Demand Registration that is an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts have the right to keep designate the lead managing underwriter, and subject to the next sentence, each other managing underwriter for such Short-Form Registration effective with registration; provided that, if ICN is participating in the SEC at all times Demand Registration, each such other managing underwriter is reasonably satisfactory to ICN, it being understood and agreed that any Short-Form Registration managing underwriter that participates as a managing underwriter in the IPO shall be re-filed upon its expirationsatisfactory to ICN. If ICN is participating in the Demand Registration, and ICN shall have the Company shall cooperate right to designate one managing underwriter other than the lead managing underwriter in any shelf take-down such registration, provided that such managing underwriter selected by amending or supplementing the Prospectus related to such Short-Form Registration as may be ICN is reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything satisfactory to the contrary Company, it being understood and agreed that any managing underwriter that participates as a managing underwriter in Section 2.1(d))the IPO shall be satisfactory to the Company.
Appears in 2 contracts
Sources: Registration Rights Agreement (Ribapharm Inc), Registration Rights Agreement (Ribapharm Inc)
Demand Registrations. (a) At Subject to the terms and conditions hereof, (x) solely during any time and from time period that the Company is then ineligible under Applicable Law to timeregister Registrable Securities on Form S‑3, or if the Holders’ Representative Company is so eligible but has failed to comply with its obligations under Section 4.3 or (y) following the expiration of the Company’s obligation to keep the Shelf Registration Statement continuously effective pursuant to Section 4.3(c), but only if there is no Shelf Registration Statement then in effect, any Demand Shareholders (“Requesting Shareholders”) shall have the right by delivering one or more be entitled to make an unlimited number of written notices to requests of the Company (each, a “Demand NoticeDemand”) to require for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders that equals or is greater than the Registrable Amount (a “Demand Registration” and such registration statement, a “Demand Registration Statement”). Thereupon, the Company toshall, pursuant subject to the terms of this Agreement, use its commercially reasonable efforts to effect the registration as promptly as practicable (but no later than forty-five (45) days after receipt of the Demand) under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register under and by the Requesting Shareholders for disposition in accordance with the provisions intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which the Securities Act Company has been requested to register pursuant to Section 4.1(b), but subject to Section 4.1(g); and
(iii) all shares of Company Common Stock which the number Company may elect to register in connection with any offering of Registrable Securities owned by Holders pursuant to this Section 4.1, but subject to Section 4.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and requested by such Demand Notice the additional shares of Company Common Stock, if any, to be so registered registered.
(a “b) A Demand Registration”); provided, however, that a Demand Notice may only be made if shall specify: (i) the amount aggregate number of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or in such Demand Registration, (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected intended method or methods of disposition in connection with such Demand Registration, to the extent then known, and (iii) the identity of the applicable Registrable SecuritiesRequesting Shareholder(s). Following Within ten (10) days after receipt of a Demand NoticeDemand, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days give written notice of such Demand to all other holders of Registrable Securities. The Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by which the Company of such Demand Notice has received a written request for inclusion therein within ten (10) days after the Company’s notice required by this paragraph has been given, subject to paragraph (e) Section 4.1(g). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2.14.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one A Demand Registration in any six month period.
shall not be deemed to have been effected (di) In unless the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement with respect thereto has become effective and has remained effective for a period of at least one year after the effective date thereof hundred five (105) days or such shorter period in which all Registrable Securities included in such Demand Registration Statement have actually been sold. For sold or otherwise disposed of thereunder (provided, that such period shall be extended for a period of time equal to the avoidance period the holders of doubt, Registrable Securities refrain from selling any securities included in such registration statement at the foregoing sentence is not intended to limit the obligation request of the Company or the lead managing underwriter(s) pursuant to maintain the continuous effectiveness provisions of this Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to one hundred five (105) days after effectiveness, to any stop order, injunction or other order or requirement of the Short-Form Registration contemplated Commission or other Governmental Authority, other than by Section 2.1(hreason of any act or omission by the applicable Selling Shareholders.
(d) Demand Registrations shall be on such appropriate registration form of the Commission as required shall be selected by Section 2.1(h)the Company and reasonably acceptable to the Requesting Shareholders.
(e) The Company shall not be obligated to (i) subject to Section 4.1(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration for a period longer than one hundred five (105) days or (ii) effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Demand Shareholders were offered “piggyback” rights pursuant to Section 4.2 (subject to Section 4.2(b)) and at least fifty percent (50%) of the number of Registrable Securities requested by such Demand Shareholders to be included in such Demand Registration were included, (B) within ninety (90) days of the completion of any other Demand Registration (including, for the avoidance of doubt, any Underwritten Offering pursuant to any Shelf Registration Statement) or (C) if, in the Company’s good faith determination, it is not feasible for the Company to proceed with the Demand Registration because of the unavailability of audited or other required financial statements of the Company or any other Person; provided, that the Company shall use its commercially reasonable efforts to obtain such financial statements as promptly as practicable.
(f) The Company shall be entitled to (i) postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in upon written notice to the aggregate, 90 days during any twelve-month period), Demand Shareholders) the filing or initial the effectiveness ofof a registration statement for any Demand Registration, or (ii) cause any Demand Registration Statement to be withdrawn and its effectiveness terminated and (iii) suspend the use ofof the prospectus forming the part of any registration statement, in each case in the event of a Demand Registration Statement if Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period under clause (ii) of the definition thereof, the Company delivers shall deliver to the Holders’ Representative Demand Shareholders requesting registration a certificate signed by both either the Chief Executive Officer and Chief Financial Officer chief executive officer or the chief financial officer of the Company certifying that, in the good faith judgment of the Board Company, the conditions described in clause (ii) of Directors the definition of Blackout Period are met. Such certificate shall contain an approximation of the anticipated delay. Upon notice by the Company to the Demand Shareholders of any such determination, each Demand Shareholder covenants that, subject to Applicable Law, it shall keep the fact of any such notice strictly confidential, and, in the case of a Blackout Period pursuant to clause (ii)(y) of the definition of Blackout Period, promptly halt any offer, sale, trading or other Transfer by it or any of its Affiliates of any Registrable Securities for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration Statement, each prospectus included therein, and any amendment or supplement thereto by it and any of its Affiliates for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and, if so directed in writing by the Company, will deliver to the Company any copies then in the Demand Shareholder’s possession of the prospectus covering such registrationRegistrable Securities that was in effect at the time of receipt of such notice.
(g) If, offering or use in connection with a Demand Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its (their) good faith opinion, the inclusion of all of the securities sought to be registered in connection with such Demand Registration would reasonably be expected to materially adversely affect or materially interfere with any bona fide the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and imminent material financing in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Demand Shareholders, which, in the opinion of the lead managing underwriter(s), can be sold without adversely affecting the success thereof, pro rata among such Demand Shareholders on the basis of the number of such Registrable Securities requested to be included by such Demand Shareholders; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or any imminent material transaction under consideration such other allocation method determined by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(fh) The Holders’ Representative shall have the right to notify the Company Any time that it has determined that the Registration Statement relating to a Demand Registration involves an Underwritten Offering, the Requesting Shareholder(s) shall select the investment banker(s) and manager(s) that will serve as managing underwriters (including which such managing underwriters will serve as lead or co-lead) and underwriters with respect to the offering of such Registrable Securities; provided, that such investment banker(s) and manager(s) shall be abandoned or withdrawn, in which event reasonably acceptable to the Company shall promptly abandon or withdraw (such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is acceptance not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b)unreasonably withheld, conditioned or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)delayed).
Appears in 2 contracts
Sources: Stockholders Agreement (Air Transport Services Group, Inc.), Stockholders Agreement (Air Transport Services Group, Inc.)
Demand Registrations. (a) At any time and from time Subject to timethe provisions of this Section 5 (including the restrictions set forth in Section 5A(d)), each of the Holders’ Representative Requesting Holders shall have the right by delivering one or more written notices to (the Company (each, a “Demand NoticeRight”) to require the Company to, pursuant to the terms of this Agreement, register request registration under and in accordance with the provisions of the Securities Act of all or any portion of the Registrable Securities held by such Requesting Holder(s) by delivering a written notice to the principal business office of the Company, which notice identifies the Requesting Holders and specifies the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered included in such registration (the “Registration Request”). The Company shall give prompt written notice of such Registration Request (the “Registration Notice”) to all other holders of Registrable Securities and shall thereupon use its best efforts to effect the registration (a “Demand Registration”); provided, however, that a Demand Notice may only be made if ) under the amount of Securities Act on any form available to the Company of:
(i) the Registrable Securities requested to be registered by the Requesting Holder and all other Registrable Securities which the Company has received a written request to register within 15 days after the Registration Notice is either given;
(ii) any securities of the Company proposed to be included in such registration by the Company for its own account; and
(iii) any Common Stock of the Company proposed to be included in such registration by the holders of any registration rights granted other than pursuant to this Agreement (“Other Registration Rights”).
(b) A registration undertaken by the Company at the request of the Requesting Holder shall not count as a Demand Registration for purposes of Section 5A(d):
(i) if, pursuant to the Demand Right, the Requesting Holders fail to register and sell at least 2085% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein in such registration by them; or
(ii) if the Requesting Holders thereof in accordance with withdraw a Registration Request (1) upon the methods determination of distribution elected by such Holders (the Board to postpone the filing or effectiveness of a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement pursuant to Section 5A(d) or (2) upon the recommendation of the managing underwriter of such offering due to discovery of a material adverse development regarding the Company or its Subsidiaries or general adverse economic or market conditions which, in such underwriter’s opinion and in either case, are reasonably likely to materially and adversely affect the price that could be declared effective under obtained for such securities or the Securities Act as promptly as practicable after marketability thereof (provided that the filing thereofright of the Requesting Holders to withdraw a Registration Request pursuant to this clause (2) for general adverse economic or market conditions may be exercised only once for each Requesting Holder).
(bc) No securities shall be included under any Demand Registration Statement related to an underwritten offering without If the written consent sole or managing underwriter of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and advises the managing underwriter(s) of such underwritten offering advise the Holders Company in writing that it is their good faith in its opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other other securities requested to be included exceeds the number of Registrable Securities and other securities which can be sold in such offering without adversely affecting the distribution of the securities being offered, the price that will be paid in such offering, or the marketability of such securities, then the Company shall be allocated for inclusion as followsinclude in such registration in the following order of priority:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the greatest number of Registrable Securities Beneficially Owned proposed to be registered which in the opinion of such underwriters can be so sold, such amount to be allocated ratably among each Demand Holder based on the amount of Registrable Securities held by each such Holder; andDemand Holder (or, if any Demand Holder does not request to include its ratable share, such excess shall be allocated ratably among those Requesting Holders requesting to include more than their allocable share);
(ii) second, after all of the Registrable Securities that the Demand Holders propose to register, the greatest number of Registrable Securities proposed to be registered by Securityholders (other than Demand Holders) which in the opinion of such underwriters can be so sold, such amount to be allocated ratably among any holders of Other Securities, pro rata, such Securityholders based on the number amount of Other Registrable Securities Beneficially Owned held by each such holder.Securityholder (or, if any Securityholder does not request to include its ratable share, such excess shall be allocated ratably among those Securityholders requesting to include more than their allocable share);
(ciii) The third, after all Registrable Securities that the Demand Holders collectively and Securityholders propose to register, the greatest number of securities proposed to be registered by Persons with Other Registration Rights which in the opinion of such underwriters can be so sold, such amount to be allocated ratably among the respective holders thereof based on the amount of securities held by each such holder (or, if any holder does not request to include its ratable share, such excess shall be entitled allocated ratably among those holders requesting to request no include more than three their allocable share); and
(iv) fourth, after all securities that the Demand Registrations Holders, Securityholders and the Persons with Other Registration Rights propose to register, the greatest number of the Company, and in no event shall securities proposed to be registered by the Company for its own account, which in the opinion of such underwriters can be required so sold; provided, however, that the Company shall have the right (the “Priority Right”) to effect more receive priority over all holders of Registrable Securities and Persons with Other Registration Rights (other than one Requesting Holders) in any Demand Registration to be effected under this Section 5A with respect to securities that the Company proposes to include in any six month periodsuch registration for its own account by giving written notice of its election to exercise such Priority Right to the Requesting Holders; and thereafter, priority will be as set forth in (i)-(iii) above.
(d) In The Company shall be obligated to effect (i) a maximum of four Demand Registrations on Form S-1 or Form S-2 (or similar long-form registration forms) and an unlimited number of registrations on Form S-3 (or similar short-form registration forms) for the event IPC Holders, (ii) a maximum of one Demand Registration for the Mezzanine Holders, (iii) a maximum of one Demand Registration for the FdG Holders, and (iv) a maximum of one Demand Registration for the ▇▇▇▇▇▇▇▇ Holders. Any Demand Registration requested must be for a firmly underwritten public offering (to be managed by an underwriter or underwriters of recognized national standing selected by the Requesting Holders and reasonably acceptable to the Company). The Company shall not be obligated to effect any Demand Registration within a period of six months after the effective date of any previous Registration Statement. The Company shall not be obligated to effect any Demand Registration if it reasonably believes that the aggregate sales price of all securities proposed to be included in such Demand Registration will not equal or exceed $5 million (or $2 million if such Demand Holder exercises its Demand Right with respect to all remaining Registrable Securities held by such Demand Holder) if such registration is effected on Form S-3 (or any successor form) or $20 million if such registration is effected on any other form. The Company shall not be obligated to effect the Demand Registration of the Mezzanine Holders, the FdG Holders or the ▇▇▇▇▇▇▇▇ Holders, as the case may be, until the date that is one year following the consummation of the Company’s Qualified Public Offering. The rights of the Mezzanine Holders, the FdG Holders or the ▇▇▇▇▇▇▇▇ Holders shall not be exercisable (i) prior to the first anniversary of a Demand RegistrationQualified Public Offering and (ii) at any time when (1) the Blackstone Holders, the Company shall use its reasonable best efforts to maintain FdG Holders or the continuous effectiveness ▇▇▇▇▇▇▇▇ Holders, as applicable, owns less than 2% of the applicable Company’s Common Stock (on a fully-diluted basis taking into account all Common Stock Equivalents) and (2) the Registrable Securities held by the Blackstone Holders, the FdG Holders or the ▇▇▇▇▇▇▇▇ Holders, as applicable, are saleable to the public pursuant to Rule 144, without regard to any volume limitations, adopted under the Securities Act. The Company may defer not more than two times for a period not to exceed 90 days in the aggregate during any 12-month period from each receipt of the request to file a Registration Statement for a period Demand Registration if the Board in good faith determines that such Demand Registration might reasonably be expected to have a materially adverse effect on any proposal or plan by the Company or any of at least one year after its Subsidiaries to engage in any acquisition of assets (other than in the effective date thereof ordinary course of business) or such shorter period in which all Registrable Securities included any merger, consolidation, tender offer or other material transactions; provided that in such Registration Statement have actually been sold. For the avoidance of doubtevent, the foregoing sentence Requesting Holders shall be entitled to withdraw such request and, if such request is withdrawn, such Demand Registration shall not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) count as required by Section 2.1(h)a Demand Registration.
(e) The In connection with any Demand Registration pursuant to this Section 5A, each party to this Agreement shall vote, or cause to be voted, all securities of the Company shall be entitled over which it has the power to postpone (but not more than once in vote or direct the voting to effect any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceedingstock split which, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer opinion of the Company certifying thatsole or managing underwriter, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected is necessary to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to facilitate the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth aboveDemand Registration.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 2 contracts
Sources: Securityholders Agreement (Vitamin Shoppe, Inc.), Securityholders Agreement (Vs Holdings, Inc.)
Demand Registrations. (a) At any time and from time to timebeginning six months after the closing of a ‘33 Act Offering, the Holders’ Representative Series A Holders holding in the aggregate at least fifty percent (50%) of the Registrable Shares may request, in writing, that the Company effect the registration on Form S-1 (or any successor form), under the Securities Act of the Registrable Shares owned by such Series A Holder.
(b) At any time upon receipt of a Mandatory Conversion Notice for the Shares (as defined in the Company’s Articles of Incorporation, as amended), the Series A Holder receiving such notice may request, in writing, that the Company effect the registration on Form S-1 (or any successor form), under the Securities Act of the Registrable Shares owned by such Series A Holder.
(c) At any time after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), the Series A Holders holding in the aggregate at least fifty percent (50%) of the Registrable Shares may request, in writing, that the Company effect the registration on Form S-3 (or such successor form), of such Series A Holder’s Registrable Shares.
(d) Upon receipt of any request for registration under the Securities Act pursuant to this Section 2, the Company shall promptly give written notice of such proposed registration to all other Shareholders. Such Shareholders shall have the right, by giving written notice to the Company within thirty (30) days after the Company provides its notice, to elect to have included in such registration such of their Registrable Shares as such Shareholders may request in such notice of election, subject in the case of an underwritten offering to the approval of the managing underwriter as provided in Section 2.1(e) below. Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration on an appropriate registration form of all Registrable Shares which the Company has been requested to so register, provided, however, that in the case of a registration requested under Section 2.1(c), the Company will only be obligated to effect such registration on Form S-3 (or any successor form).
(e) If the Initiating Holders intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 2.1(a), (b) or (c), as the case may be, and the Company shall include such information in its written notice referred to in Section 2.1(d). The right of any other Shareholder to include its Registrable Shares in such registration pursuant to Section 2.1(a), (b) or (c), as the case may be, shall be conditioned upon such other Shareholder’s participation in such underwriting on the terms set forth herein. If the managing underwriter determines that the marketing factors require a limitation of the number of shares to be underwritten, the number of Registrable Shares to be included in a Registration Statement filed pursuant to this Section 2.1, shall be reduced pro rata among the requesting Shareholders based on the quotient of (1) the total Registrable Shares to be included in the Registration Statement, divided by (2) the total number of Registrable Shares that requested registration; provided, however, that in no event shall the Shares to be sold by the Series A Holders be reduced to below twenty-five percent (25%) of the total amount of securities to be included in the registration.
(f) The Initiating Holders shall have the right by delivering one or more written notices to select the managing underwriter(s) for any underwritten offering requested pursuant to this Section 2.1, subject to the approval of the Company, which approval will not be unreasonably withheld.
(g) The Company shall not be required to effect more than two (each, a “Demand Notice”2) to require the Company to, registrations pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”Section 2.1(a); provided, however, that a Demand Notice may only the Company shall not be made if required to effect the amount second of Registrable Securities requested to be registered is either such two (2) registrations in the event that (i) at least 20% the Company is eligible to file a Registration Statement on Form S-3 (or any successor form), and (ii) the Shareholders have had the opportunity to register all of their Registrable Shares under the Securities Act pursuant to Section 2.2 hereof. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) (i) within ninety (90) days after the effective date of any other Registration Statement of the aggregate number of Registrable Securities then held by all Holders Company on Form S-1 (or any successor form) or (ii) reasonably expected to generate aggregate gross proceeds on sale during the one hundred and eighty (prior to deducting underwriting discounts and commissions and offering expenses180) of at least $25 million. A Demand Notice shall also specify day period commencing with the expected method or methods of disposition date of the applicable Registrable SecuritiesCompany’s initial ‘33 Act Offering. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) For purposes of this Section 2.12.1(g), a Registration Statement relating to the offer and sale of the Registrable Securities requested to shall not be included therein by the Holders thereof in accordance with the methods of distribution elected by counted until such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause time as such Registration Statement to be has been declared effective under by the Securities Act as promptly as practicable after Commission and the filing thereof.
related sale is consummated (b) No securities in the case of an underwritten offering). There shall be included under any Demand Registration Statement related no limitations as to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(iiregistrations the Series A Holders may request under Section 2.1(b) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
or (c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(eh) The If at the time of any request to register Registrable Shares by Initiating Holders pursuant to this Section 2.1, the Company shall is engaged or has plans to engage in a registered public offering or is engaged in any other activity which, in the good faith determination of the Company’s Board of Directors, would be entitled adversely affected by the requested registration, then the Company may at its option direct that such request be delayed for a period not in excess of ninety (90) days from the date of such request, such right to postpone (but delay a request to be exercised by the Company not more than once in any six12-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 2 contracts
Sources: Registration Rights Agreement (Across America Real Estate Corp), Registration Rights Agreement (GDBA Investments LLLP)
Demand Registrations. (a) At any time after the earlier of (a) February 15, 2003, or (b) such time as the Company's Common Stock is traded on the NASDAQ, AMEX, NYSE or like stock exchange with quantitative and from time to timequalitative listing requirements, the Holders’ Representative Holder may request that the Company register any Registrable Securities. The Holder shall be entitled to one (1) such demand registration per twelve (12) month period (i.e. all registrations must be at least 12 months plus one day apart). The Holder shall have the right by delivering one or more written notices to demand that the Company (eachsatisfy its obligations pursuant to this Section 3 by use of the SEC's Form S-8, a “Demand Notice”) or any successor form thereto, subject to require applicable law, or such other SEC registration statement form as Holder may choose to request, including Form S- 3 or any successor form thereto, or if Form S-3 is not available, Form S-1 or Form S-2, or any successor form thereto. Holder shall notify the Company to, pursuant in writing that it intends to the terms of this Agreement, register under and in accordance with the provisions offer or cause to be offered for public sale all or any portion of the Securities Act the number of Registrable Securities owned by Holders Shares, and requested by such Demand Notice to be so registered within ten (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i10) at least 20% days of the aggregate number receipt after such notice.
(b) Upon written request of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, Holder the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect will use its best efforts to cause all or any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale part of the Registrable Securities that may be requested by Holder to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective registered under the Securities Act as promptly expeditiously as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holderpossible.
(c) The Holders collectively If Holder intends to distribute the Registrable Securities covered by its request by means of an underwriting, it shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall so advise the Company be required to effect more than one Demand Registration in any six month periodas part of its request.
(d) In Notwithstanding the event of a Demand Registrationforegoing, the Company shall use its reasonable best efforts not be obligated to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness ofeffect, or suspend the use ofto take any action to effect, a Demand Registration Statement any registration pursuant to this Section 3: (i) if the Company delivers shall furnish to the Holders’ Representative Holder a certificate signed by both the Chief Executive Officer and Chief Financial Officer President of the Company certifying that, stating that in the good faith judgment of the Board of Directors of the Company, such registration, offering or use it would reasonably be expected seriously detrimental to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by and its stockholders for such registration statement to be effected at such time, and that it is essential to the Company or would require to defer the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawnfiling, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for have the purposes right to defer the filing of the limitations 3 registration statement for a period of not more than 120 days after receipt of the request of the Holder under this Section 3; provided, however that the Company shall not utilize this right more than once in Section 2.1(cany 12 month period; or (ii) if: (A) during the Holders’ Representative determines in good faith to withdraw period starting with the proposed registration date 60 days prior to the effectiveness Company's good faith estimate of filing of, and ending on a date 180 days after the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to effective date of, a registration statement filed under the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC Securities Act (other than a registration relating solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included securities to participants in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)stock plan).
Appears in 2 contracts
Sources: Consulting Agreement (Vital Living Inc), Consulting Agreement (Vital Living Inc)
Demand Registrations. (ai) At Subject to Section 2.1(c), at any time and or from time to timetime after the Effective Time (as defined in the Merger Agreement), a group of Holders owning at least 50% of the remaining Registrable Securities (a “Majority of Holders’ Representative ”), shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act covering such aggregate number of Registrable Securities that have an aggregate anticipated offering price of at least $15,000,000 (based on the market price of the Common Stock as of the date of the Demand Registration Request), by delivering a written request therefor to the Company specifying the number of Registrable Securities owned to be included in such registration by such Holders and the intended method of distribution thereof. Any such request by the Holders pursuant to this Section 2.1(a)(i) is referred to as a “Demand Registration Request,” the registration so requested by such is referred to as a “Demand Notice to be so registered Registration.”
(ii) As promptly as practicable, but no later than 10 days after receipt of a Demand Registration Request, the Company shall give written notice (a “Demand RegistrationExercise Notice”); provided) of such Demand Registration Request to all Holders of record of Registrable Securities. The Company, howeversubject to Sections 2.3 and 2.6, that shall include in a Demand Notice may only be made if Registration the amount Registrable Securities of any Holder of Registrable Securities requested that shall have made a written request to the Company within the time limits specified below for inclusion in such registration (the “Participating Holders”). Any such request from the Holders must be registered is either (i) at least 20% delivered to the Company within 10 Business Days after the receipt of the aggregate Demand Exercise Notice and must specify the maximum number of Registrable Securities then held intended to be disposed of by all Holders or such Holders.
(iiiii) reasonably expected The Company, as expeditiously as possible but subject to generate aggregate gross proceeds Section 2.1(c), shall use its reasonable best efforts to effect such registration under the Securities Act of the Registrable Securities that the Company has been so requested to register for distribution in accordance with such intended method of distribution.
(b) Registrations under this Section 2.1 shall be on sale (prior to deducting underwriting discounts and commissions and offering expenses) such appropriate registration form of at least $25 million. A Demand Notice shall also specify the expected SEC for the disposition of such Registrable Securities in accordance with the intended method or methods of disposition of thereof, which form shall be selected by the applicable Registrable Securities. Following receipt of a Company and shall be reasonably acceptable to the Participating Holders.
(c) The Demand Notice, Registration rights granted in Section 2.1(a) to the Holders are subject to the following limitations:
(i) the Company shall file, as promptly as reasonably practicable, but not later than, 60 be required to cause a registration pursuant to Section 2.1(a) to be filed within 45 days with respect or to any underwritten offering, or 30 be declared effective within a period of 90 days with respect to after the effective date of any other offering, after receipt by registration statement of the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating filed pursuant to the offer Securities Act for which piggyback rights were available pursuant to Section 2.3 and sale for which a majority of the Registrable Securities requested to be included therein in such registration have been included;
(ii) if, in the opinion of counsel to the Company, any registration of Registrable Securities would require disclosure of information not otherwise then required by law to be publicly disclosed and, in the Holders thereof in accordance with good faith judgment of the methods board of distribution elected by directors of the Company, such Holders disclosure is reasonably likely to adversely affect any material financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Company or otherwise have a material adverse effect on the Company (a “Demand Registration StatementValid Business Reason”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under ), the Securities Act as promptly as practicable after the Company may postpone or withdraw a filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant a registration statement relating to a Demand Registration are to be sold in a firm commitment underwritten offeringRequest until such Valid Business Reason no longer exists, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and but in no event shall the Company avail itself of such right for more than (A) 45 days after receipt of a Demand Registration Request or (B) 90 days, in the aggregate, in any period of 365 consecutive days (such period of postponement or withdrawal under this clause (ii), the “Postponement Period”); and the Company shall give written notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof; and
(iii) the Company shall not be required obligated to effect more than one two Demand Registration in Registrations under Section 2.1(a) for the Holders. If the Company shall give any six month period.
notice of postponement or withdrawal of any registration statement pursuant to clause (dii) In above, the event Company shall not register any equity security of the Company during the period of postponement or withdrawal. Each Holder of Registrable Securities agrees that, upon receipt of any written notice from the Company that the Company has determined to withdraw any registration statement pursuant to clause (ii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Company shall have withdrawn or prematurely terminated a registration statement filed under Section 2.1(a)(i), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a Demand Registrationregistration statement, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event more than 45 days after the date of the postponement or withdrawal), the Company shall use its reasonable best efforts to maintain effect the continuous effectiveness registration under the Securities Act of the applicable Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1.
(d) The Company, subject to Sections 2.4 and 2.7, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), (i) authorized but unissued shares of Common Stock or shares of Common Stock held by the Company as treasury shares and (ii) any other shares of Common Stock that are requested to be included in such registration pursuant to the exercise of piggyback rights granted by the Company (“Additional Piggyback Rights”); provided, however, that such inclusion shall be permitted only to the extent that it is pursuant to and subject to the terms of the underwriting agreement or arrangements, if any, entered into by the Participating Holders (subject to Section 2.4).
(e) A Holder may withdraw its Registrable Securities from a Demand Registration Statement at any time. If all such Holders do so, the Company shall cease all efforts to secure registration and such registration nonetheless shall be deemed a Demand Registration for purposes of this Section 2.1 unless (i) the withdrawal is made following withdrawal or postponement of such registration by the Company pursuant to a Valid Business Reason as contemplated by Section 2.1(c), (ii) the withdrawal is based on the reasonable determination of the Holders who requested such registration that there has been, since the date of the Demand Registration Request, a material adverse change in the business or prospects of the Company, or (iii) the Holders who requested such registration shall have paid or reimbursed the Company for all of the reasonable out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration.
(f) A Demand Registration shall not be deemed to have been effected and shall not count as such (i) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least one year after the effective date thereof 180 days or such shorter period in during which all Registrable Securities included in covered by such Registration Statement have actually been sold. For the avoidance of doubtsold or withdrawn, the foregoing sentence is not intended or, if such Registration Statement relates to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period)an underwritten offering, for a reasonable such longer period of time not in excess of 60 days (and not for periods exceedingas, in the aggregate, 90 days during any twelve-month periodopinion of counsel for the underwriter(s), the filing or initial effectiveness of, or suspend the use of, is required by law for delivery of a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, prospectus in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere connection with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in by an underwriter or dealer, (ii) if, after the applicable registration relating statement with respect thereto has become effective, it becomes subject to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity governmental agency or courtcourt for any reason, (Diii) more than 10% of the Registrable Securities requested if it is withdrawn by the Holders to be included in the registration are not so included Company pursuant to a Valid Business Reason as contemplated by Section 2.1(b), 2.1(c) or (Eiv) if the conditions to closing specified in any underwriting the purchase agreement or purchase underwriting agreement entered into in connection with the registration relating to such request Demand Registration are not satisfied (satisfied, other than as a result solely by reason of a material default some act or breach thereunder by omission of the applicable Participating Holders). Notwithstanding anything to the contrary, the Company will pay all expenses .
(in accordance with Section 2.8g) in In connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Demand Registration, the Company shall use its reasonable best efforts to keep may designate the lead managing underwriter in connection with such Short-Form Registration effective with the SEC at all times registration and any Short-Form Registration shall be re-filed upon its expirationeach other managing underwriter for such registration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise requiredprovided, until the Holders no longer hold Registrable Securities (that, in each case, notwithstanding anything each such underwriter is reasonably satisfactory to the contrary in Section 2.1(d))Participating Holders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Singer Madeline Holdings, Inc.), Registration Rights Agreement (Martha Stewart Living Omnimedia Inc)
Demand Registrations. (a) At any time and from time to timetime following the last day of the Holding Period, the Holders’ Representative shall have the right by delivering one or more a written notices notice to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned Beneficially Owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that in respect of four out of the five Demand Registrations to which the Holders are entitled under this Agreement, a Demand Notice may only be made if the amount of Registrable Securities requested to be registered by the Holders’ Representative is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 50 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities, including any distribution to, and resale by, any partners of a Holder (a “Partner Distribution”). As promptly as practicable, but no later than 7 Business Days after receipt of a Demand Notice, the Company shall give written notice of such Demand Notice to all Holders of record of Registrable Securities.
(b) Following receipt of a Demand Notice, the Company shall use its reasonable best efforts to file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or than 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (ef) of this Section 2.1), a Registration Statement (including, without limitation, on Form S-3 (or any comparable or successor form or forms or any similar short-form registration) by means of a shelf registration pursuant to Rule 415 under the Securities Act, if so requested and the Company is then eligible to use such a registration and if there is no then-currently effective shelf registration statement on file with the SEC which would cover all the Registrable Securities requested to be registered) (a “Demand Registration Statement”) relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof Holders’ Representative and any other Holder of Registrable Securities which shall have made a written request to the Company for inclusion in such registration (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Selling Holder) within 20 days after the receipt of the Demand Notice (or 10 days if, at the request of the Holders’ Representative, the Company states in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form S-3), in accordance with the method or methods of distribution disposition of the applicable Registrable Securities elected by such Holders (including a “Demand Registration Statement”) Partner Distribution), and the Company shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof. The Company shall, at the request of any Holder seeking to effect a Partner Distribution, use its reasonable best efforts to file a Prospectus supplement or one or more post-effective amendments and otherwise take action necessary to include therein all disclosure and language deemed necessary or advisable by such Holder if such disclosure or language was not included in the initial Registration Statement, or revise such disclosure or language if deemed necessary or advisable by such Holder, to effect such Partner Distribution; provided that no language shall be included that the Company’s counsel considers misleading, inaccurate or otherwise inappropriate for inclusion in such document.
(bc) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if If any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by an Investor or its Affiliates, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder;
(ii) second, the Registrable Securities for which inclusion in such demand offering was requested by the other Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(iiiii) secondthird, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(cd) The Holders collectively shall be entitled to request no more than three five Demand Registrations of on the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six nine month period.
(de) In the event of a Demand Registration, the Company shall use its reasonable best efforts be required to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year 180 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt; provided, the foregoing sentence however, that nothing in this Section 2.1(e) is not intended to limit the obligation of the Company Company’s obligations to maintain the continuous effectiveness of Short Form Registrations in accordance with the Short-Form Registration contemplated by provisions of Section 2.1(h) as required by Section 2.1(h2.1(i).
(ef) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 75 days (and not for periods exceeding, in the aggregate, 90 100 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, of a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and reasonably imminent material financing of the Company or any reasonably imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(fg) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(gh) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: if (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceedproceed or a misrepresentation or an omission by the applicable Holders), (C) prior to the sale or distribution of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, or (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable one or more Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.82.9) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(hi) In Subject to Section 2.5, in addition to the foregoingDemand Registrations provided pursuant to this Section 2.1, at all times following the last day of the Holding Period, the Company will use its reasonable best efforts to remain qualified qualify for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (including pursuant to Rule 415 under the Securities Act) (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which Registration shall promptly following the last day of the Holding Period be filed by the Company and constitute a “shelf” shelf registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. In no event shall the Company be obligated to effect any shelf registration other than pursuant to a Short-Form Registration. Upon filing a Short-Form Registration, the Company shall will use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times (notwithstanding anything to the contrary in Section 2.1(d)) and any to refile such Short-Form Registration shall be re-filed upon its expiration, and the Company shall to cooperate in any shelf take-down by amending or supplementing the Prospectus prospectus statement related to such Short-Form Registration as may reasonably be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))Securities.
Appears in 2 contracts
Sources: Registration Rights Agreement (Moneygram International Inc), Registration Rights Agreement (Moneygram International Inc)
Demand Registrations. (a) At (i) Subject to Sections 2.1(b) and 2.3, at any time and from time to timetime after the closing of the IPO, the Holders’ Representative THNV or any GSCP Member shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file one or more registration statements under and in accordance with the provisions of the Securities Act covering all or any part of its and its Affiliates Registrable Securities by delivering a written request therefor to the Company specifying the number of Registrable Securities owned by Holders and requested by such Demand Notice to be included in such registration and the intended method of distribution thereof. Any such request by THNV or any GSCP Member pursuant to this Section 2.1(a)(i) is referred to herein as a “Demand Registration Request,” and the registration so registered (requested is referred to herein as a “Demand Registration” (with respect to any Demand Registration, THNV or the GSCP Member(s) making such demand for registration being referred to as the “Initiating Holder(s)”); provided. As promptly as practicable, however, that but no later than five (5) Business Days after receipt of a Demand Notice may only be made if Registration Request, the amount Company shall give written notice (the “Demand Exercise Notice”) of such Demand Registration Request to all other Holders of record of Registrable Securities.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities requested to be registered is either (i) at least 20% of the aggregate Initiating Holder(s) and (y) the Registrable Securities of any other Holder of Registrable Securities, which shall have made a written request to the Company for inclusion in such registration pursuant to Section 2.2 (which request shall specify the maximum number of Registrable Securities then held intended to be disposed of by all Holders or such Participating Holder) within twenty (ii20) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify days after the expected method or methods of disposition receipt of the applicable Registrable Securities. Following receipt Demand Exercise Notice (or fifteen (15) days if, at the request of a Demand Noticethe Initiating Holder(s), the Company shall filestates in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form S-3).
(iii) The Company shall, as promptly expeditiously as reasonably practicablepossible, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.12.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause (x) effect such Registration Statement to be declared effective registration under the Securities Act as promptly as practicable after (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the filing thereofSecurities Act if so requested and if the Company is then eligible to use such a registration) of the Registrable Securities which the Company has been so requested to register, for distribution in accordance with such intended method of distribution, including a distribution to, and resale by, the members or partners of a Holder (a “Partner Distribution”) and (y) if requested by the Initiating Holder(s), obtain acceleration of the effective date of the registration statement relating to such registration.
(iv) Notwithstanding anything contained herein to the contrary, the Company shall, at the request of any Holder seeking to effect a Partner Distribution, file any prospectus supplement or post-effective amendments and otherwise take any action necessary to include therein all disclosure and language deemed necessary or advisable by such Holder if such disclosure or language was not included in the initial registration statement, or revise such disclosure or language if deemed necessary or advisable by such Holder, to effect such Partner Distribution.
(b) No securities shall be included under any Notwithstanding anything to the contrary in Section 2.1(a), the Demand Registration Statement related rights granted in Section 2.1(a) are subject to an underwritten offering without the written consent of following limitations: (i) the Holders’ Representative, except Registrable Securities requested Company shall not be required to be included therein cause a registration pursuant to Section 2.1(a). Subject 2.1(a)(i) to be declared effective within a period of one hundred and eighty (180) days after the effective date of any other registration statement of the Company filed pursuant to the preceding sentenceSecurities Act; (ii)(x) the Company shall not be required to effect more than five (5) Demand Registrations for the GSCP Members (it being understood that if a single Demand Registration Request is delivered by more than one GSCP Member, if the registration requested by such Demand Registration Request shall constitute only one Demand Registration), which number of requests shall be inclusive of any requests made by PVF after the IPO pursuant to the terms and conditions of the Registrable Securities registered pursuant to a Demand PVF Registration are to be sold in a firm commitment underwritten offeringRights Agreement, and the managing underwriter(s(y) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company shall not be required to effect more than one (1) Demand Registration for THNV; and (iii) if the Board, in its good faith judgment, determines that any six month period.
(d) In the event registration of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is should not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing made or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use continued because it would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of financing, acquisition, corporate reorganization or merger or other transaction or event involving the Company or any imminent material transaction under consideration by of its subsidiaries (a “Valid Business Reason”), then (x) the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement may postpone filing a registration statement relating to a Demand Registration Request until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than three (3) months after the date the Board determines a Valid Business Reason exists and (y) in case a registration statement has been filed relating to a Demand Registration Request, if the Valid Business Reason has not resulted from actions taken by the Company, the Company may cause such registration statement to be abandoned withdrawn and its effectiveness terminated or withdrawnmay postpone amending or supplementing such registration statement until five (5) Business Days after such Valid Business Reason no longer exists, but in which no event for more than three (3) months after the date the Board determines a Valid Business Reason exists (such period of postponement or withdrawal under this clause (iii), the “Postponement Period”); and the Company shall promptly abandon give written notice of its determination to postpone or withdraw such Registration Statement.
(g) No request for a registration will count for the purposes statement and of the limitations fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in Section 2.1(ceach case, promptly after the occurrence thereof; provided, however, the Company shall not be permitted to postpone or withdraw a registration statement after the expiration of any Postponement Period until nine (9) if: months after the expiration of such Postponement Period. If the Company shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (Aiii) above, the Holders’ Representative determines Company shall not, during the period of postponement or withdrawal, register any Common Equity, other than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in good faith effect). Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw the proposed any registration prior statement pursuant to the effectiveness clause (iii) above, such Holder will discontinue its disposition of the Registration Statement relating Registrable Securities pursuant to such request due to marketing conditions or regulatory reasons relating to registration statement and, if so directed by the Company, will deliver to the Company (Bat the Company’s expense) the Registration Statement relating to all copies, other than permanent file copies, then in such request is not declared effective within 60 days Holder’s possession of the date prospectus covering such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included that was in effect at the applicable time of receipt of such notice. If the Company shall have withdrawn or prematurely terminated a registration relating statement filed under Section 2.1(a)(i) (whether pursuant to such request, such registration is adversely affected by clause (iii) above or as a result of any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), (D) more than 10% the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities requested covered by the Holders to be included in withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the registration are not so included pursuant to Section 2.1(b), Company shall give any notice of withdrawal or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result postponement of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contraryregistration statement, the Company will pay all expenses shall, not later than five (5) Business Days after the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in accordance with Section 2.8no event later than three (3) in connection with any request for registration pursuant to this Agreement regardless months after the date of whether the postponement or not such request counts toward the limitation set forth above.
(h) In addition to the foregoingwithdrawal), the Company will use its reasonable best efforts to remain qualified for effect the registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the methods of distribution elected by the HoldersInitiating Holder(s) shall have withdrawn such request, including by means of an underwritten offering. Upon filing a Short-Form Registration, in which case the Company shall use its reasonable best efforts not be considered to keep such Short-Form Registration have effected an effective with registration for the SEC at all times and any Short-Form Registration shall be re-filed upon its expirationpurposes of this Agreement), and the Company such registration shall cooperate in any shelf take-down by amending not be withdrawn or supplementing the Prospectus related postponed pursuant to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities clause (in each case, notwithstanding anything to the contrary in iii) of Section 2.1(d))2.1(b) above.
Appears in 2 contracts
Sources: Registration Rights Agreement (MRC Global Inc.), Registration Rights Agreement (MRC Global Inc.)
Demand Registrations. (a) At (i) Subject to Sections 2.1(b) and 2.3 below, at any time and from time to timetime after the Registration Rights Trigger Date, the Holders’ Representative Methode shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant Stratos to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act covering all or any part of its Registrable Securities, by delivering a written request therefor to Stratos specifying the number of Registrable Securities owned to be included in such registration by Holders Methode and the intended method of distribution thereof. All such requests by Methode pursuant to this Section 2.1(a)(i) are referred to herein as "Demand Registration Requests," and the registrations so requested by are referred to herein as "Demand Registrations" (with respect to any Demand Registration, the Holder making such demand for registration being referred to as the "Initiating Holder"). As promptly as practicable, but no later than ten (10) days after receipt of a Demand Registration Request, Stratos shall give written notice (the "Demand Exercise Notice") of such Demand Notice Registration Request to be so registered all Holders of record of Registrable Securities.
(a “Demand Registration”); providedii) Stratos, howeversubject to Sections 2.3 and 2.6, that shall include in a Demand Notice may only be made if Registration (x) the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate Initiating Holder and (y) the Registrable Securities of any other Holder which shall have made a written request to Stratos for inclusion in such registration (which request shall specify the maximum number of Registrable Securities then held intended to be disposed of by all Holders or such Holder) within thirty (ii30) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify days after the expected method or methods of disposition receipt of the applicable Registrable Securities. Following receipt Demand Exercise Notice or, fifteen (15) days if, at the request of the Initiating Holder or the Major Holder participating in such registration, Stratos states in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form S-3).
(iii) Stratos shall, as expeditiously as possible, use its best efforts to (x) effect such registration under the Securities Act (including, without limitation, by means of a Demand Notice, shelf registration pursuant to Rule 415 under the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect Securities Act if so requested and if Stratos is then eligible to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of use such Demand Notice (subject to paragraph (ea registration) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities which Stratos has been so requested to be included therein by the Holders thereof register, for distribution in accordance with such intended method of distribution, and (y) if requested by the methods Initiating Holder or the Major Holder participating in such registration, obtain acceleration of distribution elected by the effective date of the registration statement relating to such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofregistration.
(b) No securities shall be included under any The Demand Registration Statement related rights granted in Section 2.1(a) to an underwritten offering without the written consent Holders are subject to the following limitations: (i) such registration statement must include shares of Common Stock representing, in the aggregate (based on the Common Stock included in such registration by Methode and its transferees), in excess of ten percent (10%) of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to sum of (x) the preceding sentence, if any amount of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount shares of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceedingheld, in the aggregate, 90 by Methode and its transferees immediately prior to such registration PLUS (y) the amount of shares of Common Stock obtainable upon the conversion of Common Stock Equivalents held, in the aggregate, by Methode and its transferees immediately prior to such registration; (ii) Stratos shall not be required to cause a registration pursuant to Section 2.1(a)(i) to be declared effective within a period of one hundred eighty (180) days during after the effective date of any twelve-month period), the filing or initial effectiveness of, or suspend the use of, registration statement of Stratos effected in connection with a Demand Registration Statement Request; and (iii) if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the CompanyStratos, such registrationin its good faith judgment, offering determines that any registration of Registrable Securities should not be made or use continued because it would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company financing, acquisition, corporate reorganization or merger or other transaction involving Stratos or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not beenits subsidiaries (a "Valid Business Reason"), and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(fx) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement Stratos may postpone filing a registration statement relating to a Demand Registration Request until such Valid Business Reason no longer exists, but in no event for more than three (3) months, and (y) in case a registration statement has been filed relating to a Demand Registration Request, if the Valid Business Reason has not resulted from actions taken by Stratos, Stratos may cause such registration statement to be abandoned withdrawn and its effectiveness terminated or withdrawnmay postpone amending or supplementing such registration statement until such Valid Business Reason no longer exists, but in no event for more than three (3) months (such period of postponement or withdrawal under subclauses (x) or (y) of this clause (iii), the "Postponement Period"), and Stratos shall give written notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in which event each case, promptly after the Company occurrence thereof; PROVIDED, HOWEVER, Stratos shall promptly abandon not be permitted to postpone or withdraw a registration statement after the expiration of any Postponement Period until twelve (12) months after the expiration of such Registration Statement.
Postponement Period without Methode's prior written approval. If Stratos shall give any notice of postponement or withdrawal of any registration statement, Stratos shall not, during the period of postponement or withdrawal, register any Common Stock, other than pursuant to a registration statement on Form S-4 or S-8 (gor an equivalent registration form then in effect). Each Holder of Registrable Securities agrees that, upon receipt of any notice from Stratos that it has determined to withdraw any registration statement pursuant to clause (iii) No request for above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement and, if so directed by Stratos, will count for the purposes deliver to Stratos (at Stratos' expense) all copies, other than permanent file copies, then in such Holder's possession of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to prospectus covering such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included that was in effect at the applicable time of receipt of such notice. If Stratos shall have withdrawn or prematurely terminated a registration relating statement filed under Section 2.1(a)(i) (whether pursuant to such request, such registration is adversely affected by clause (iii) above or as a result of any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), Stratos shall not be considered to have effected an effective registration for the purposes of this Agreement until Stratos shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If Stratos shall give any notice of withdrawal or postponement of a registration statement, Stratos shall, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (Dbut in no event later than three (3) more than 10% months after the date of the postponement or withdrawal), use its best efforts to effect the registration under the Securities Act of the Registrable Securities requested covered by the Holders withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the Initiating Holder shall have withdrawn such request, in which case Stratos shall not be considered to have effected an effective registration for the purposes of this Agreement).
(c) Stratos, subject to Sections 2.3 and 2.6, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), (i) authorized but unissued shares of Common Stock or shares of Common Stock held by Stratos as treasury shares and (ii) any other shares of Common Stock that are requested to be included in such registration pursuant to the registration exercise of piggyback rights granted by Stratos after the date hereof which are not so included inconsistent with the rights granted in, or otherwise conflict with the terms of, this Agreement ("Additional Piggyback Rights"); PROVIDED, HOWEVER, that such inclusion shall be permitted only to the extent that it is pursuant to Section 2.1(b), or (E) and subject to the conditions to closing specified in any terms of the underwriting agreement or purchase agreement arrangements, if any, entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses Initiating Holder.
(in accordance with Section 2.8d) in In connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Demand Registration, the Company Major Holder participating in such registration shall use its reasonable best efforts have the right to keep designate the lead managing underwriter, and subject to the next sentence, each other managing underwriter for such Short-Form Registration effective with the SEC at all times registration; PROVIDED, HOWEVER, that each such other managing underwriter is reasonably satisfactory to Stratos, it being understood and agreed that any Short-Form Registration managing underwriter that participates in Stratos' IPO shall be re-filed upon its expiration, and satisfactory to Stratos. Stratos shall have the Company shall cooperate right to designate one managing underwriter other than the lead managing underwriter in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be registration; PROVIDED, HOWEVER, that such other managing underwriter is reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything satisfactory to the contrary Major Holder, it being understood and agreed that any managing underwriter that participates in Section 2.1(d))Stratos' IPO shall be satisfactory to the Major Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Stratos Lightwave Inc), Registration Rights Agreement (Stratos Lightwave Inc)
Demand Registrations. (a) At (i) Subject to Sections 2.1(b) and 2.3, at any time and from time to timeafter the expiration of the Lock-Up Period, the Holders’ Representative each Holder shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, to file one or more registration statements under the Securities Act covering all or any part of its and its Affiliates’ Registrable Securities by delivering a written request therefor to the Company specifying the number of Registrable Securities to be included in such registration and the intended method of distribution thereof. Any such request by such Holder(s) pursuant to this Section 2.1(a)(i) is referred to herein as a “Demand Registration Request,” and the registration so requested is referred to herein as a “Demand Registration” (with respect to any Demand Registration, the Holder(s) making such demand for registration being referred to as the “Initiating Holders”). Notwithstanding the preceding sentences, the Company shall be required to conduct no more than two (2) Demand Registrations. Any Demand Registration Request may request that the Company register Registrable Securities on an appropriate form, including a long-form registration statement on Form S-1 (or any similar long-form registration statement), a shelf registration statement, and, if the Company is a WKSI, an automatic shelf registration statement. The Company shall give written notice (the “Demand Exercise Notice”) of such Demand Registration Request to all Holders of record of Registrable Securities no later than five (5) Business Days after receipt of a Demand Registration Request. Each Holder agrees to treat as confidential the receipt of the Demand Exercise Notice and shall not disclose or use the information contained in such notice of Demand Registration without the prior written consent of the Company until such time as the information contained therein is or becomes available to the public generally, other than as a result of disclosure by the Holder in breach of the terms of this Agreement.
(ii) The Company, register under subject to Sections 2.3 and 2.6, shall include in accordance with a Demand Registration (x) the provisions Registrable Securities of the Initiating Holders and (y) the Registrable Securities Act of any other Holder of Registrable Securities which shall have made a written request to the Company for inclusion in such registration pursuant to Section 2.2 (which request shall specify the maximum number of Registrable Securities owned by Holders and requested intended to be disposed of by such Demand Notice to be so registered Participating Holder) within ten (a “Demand Registration”); provided, however, that a Demand Notice may only be made if 10) calendar days after the amount of Registrable Securities requested to be registered is either (i) at least 20% receipt of the aggregate number of Registrable Securities then held by all Holders Demand Exercise Notice (or five (ii5) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of calendar days if, at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition request of the applicable Registrable Securities. Following receipt of a Demand NoticeInitiating Holders, the Company shall filestates in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form S-3).
(iii) The Company shall, as promptly as reasonably practicable, but not subject to Section 2.1(b), use its commercially reasonable efforts to (x) file with the SEC (no later thanthan forty five (45) days from the Company’s receipt of the applicable Demand Exercise Notice) and cause to be declared effective such registration under the Securities Act (including, 60 days with respect without limitation, by means of a shelf registration pursuant to any underwritten offering, or 30 days with respect to any other offering, after receipt by Rule 415 under the Securities Act if so requested and if the Company of is then eligible to use such Demand Notice (subject to paragraph (ea registration) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities which the Company has been so requested to be included therein by the Holders thereof register, for distribution in accordance with the methods such intended method of distribution elected and (y) if requested by the Initiating Holders, obtain acceleration of the effective date of the registration statement relating to such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofregistration.
(b) No securities shall be included under any Notwithstanding anything to the contrary in Section 2.1(a), the Demand Registration Statement related rights granted in Section 2.1(a) are subject to an underwritten offering without the written consent of following limitations: (i) the Holders’ Representative, except Registrable Securities requested Company shall not be required to be included therein cause a registration pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are ) to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for declared effective within a period of at least one year ninety (90) days after the effective date thereof of any other registration of the Company filed pursuant to the Securities Act (other than a Form S-4 or such shorter period Form S-8 or any successor or other forms promulgated for similar purposes or forms filed in which all Registrable Securities connection with an exchange offer or any employee benefit or dividend reinvestment plan); (ii) each registration in respect of a Demand Registration Request made by any Holder must include, in the aggregate (based on the Shares included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated registration by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once all Holders participating in any six-month periodsuch registration), for a reasonable period Shares having an aggregate market value of time not in excess of 60 days at least $50,000,000; and (and not for periods exceedingiii) if the Board, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the its good faith judgment judgment, determines that any registration or offering of the Board of Directors of the Company, such registration, offering Registrable Securities should not be made or use continued because (A) it would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent existing or potential material financing of financing, acquisition, corporate reorganization, merger, share exchange or other transaction or event involving the Company or any imminent material transaction under consideration by of its subsidiaries, (B) the Company does not yet have appropriate financial statements of acquired or to be acquired entities available for filing, (C) such registration or offering would render the Company unable to comply with applicable securities laws or (D) such registration or offering would require the disclosure of material information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that a bona fide business purpose for preserving as confidential (in each case, a “Valid Business Reason”), then (x) the Registration Statement Company may postpone filing a registration statement relating to a Demand Registration Request until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than ninety (90) days after the date the Board determines a Valid Business Reason exists and (y) in case a registration statement has been filed relating to a Demand Registration Request, the Company may, to the extent determined in the business judgment of the Board to be abandoned a Valid Business Reason, suspend use of or, if required by the SEC, cause such registration statement to be withdrawn and its effectiveness terminated or withdrawnmay postpone amending or supplementing such registration statement until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than ninety (90) days after the date the Board determines a Valid Business Reason exists (such period of postponement or withdrawal under this clause (iv), the “Postponement Period”); provided that the Company may not postpone the filing or effectiveness of a registration statement for a Demand Registration more than two (2) times during any twelve (12) month period and no such postponements shall last for a period exceeding one hundred twenty (120) days in the aggregate during any twelve (12) month period. The Company shall give written notice to the Initiating Holders and any other Holders that have requested registration pursuant to Section 2.2 of its determination to postpone or suspend use of or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or suspension or withdrawal no longer exists, in which event each case, promptly after the occurrence thereof. If the Company shall promptly abandon give any notice of postponement or withdraw such Registration Statement.
suspension or withdrawal of any registration statement pursuant to clause (giii) No request for registration will count for the purposes of the limitations in this Section 2.1(c2.1(b) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of an existing or potential material financing or other transaction that would reasonably require the applicable Holders having refused to proceedfiling of a registration statement), the Company shall not, during the Postponement Period, register any Shares, other than pursuant to a registration statement on Form S-4 or S-8 (C) prior to the sale or an equivalent registration form then in effect). Each Holder of at least 90% of the Registrable Securities included in agrees that, upon receipt of any notice from the applicable Company that the Company has determined to suspend use of, withdraw, terminate or postpone amending or supplementing any registration relating statement pursuant to clause (iii) of this Section 2.1(b), such Holder will discontinue its disposition of Registrable Securities pursuant to such requestregistration statement. If the Company shall have suspended use of, such withdrawn or terminated a registration is adversely affected by statement filed under Section 2.1(a)(i) (whether pursuant to clause (iii) of this Section 2.1(b) or as a result of any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), the Company shall not be considered to have effected a Demand Registration for the purposes of this Agreement until the Company shall have permitted use of such suspended registration statement or filed a new registration statement covering the Registrable Securities covered by the withdrawn or terminated registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. Each Holder agrees to treat as confidential the receipt of such postponement notice and shall not disclose or use the information contained in such notice of Postponement Period without the prior written consent of the Company until such time as the information contained therein is or becomes available to the public generally, other than as a result of disclosure by the Holder in breach of the terms of this Agreement. If the Company shall give any notice of suspension, withdrawal or postponement of a registration statement, the Company shall, not later than ten (10) Business Days after the Valid Business Reason that caused such suspension, withdrawal or postponement no longer exists (but in no event later than ninety (90) days after the date of the suspension, postponement or withdrawal), as applicable, permit use of such suspended registration statement or use its commercially reasonable efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the Initiating Holders shall have withdrawn such request, in which case the Company shall not be considered to have effected a Demand Registration for the purposes of this Agreement), and such registration shall not be suspended, withdrawn or postponed pursuant to clause (iii) of this Section 2.1(b).
(c) In connection with any Demand Registration, the majority of the Initiating Holders participating in such Demand Registration shall have the right to designate the lead managing underwriter or underwriters (any lead managing underwriter for the purposes of this Agreement, the “Manager”) in connection with any underwritten offering pursuant to such registration; provided, that any such Manager is reasonably satisfactory to the Company, which approval shall not be unreasonably withheld or delayed.
(d) No Demand Registration shall be deemed to have occurred for purposes of this Section 2.1 (i) if the registration statement relating thereto (x) does not become effective, (Dy) more is not maintained effective for a period of at least one hundred and eighty (180) days (or, with respect to a Shelf Registration Statement (including any automatic shelf registration statement), three (3) years) after the effective date thereof or such shorter period during which all Registrable Securities included in such registration statement have actually been sold (provided, however, 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 an underwriter of the Company), or (z) is subject to a stop order, injunction, or similar order or requirement of the SEC during such period, (ii) if the method of disposition is a firm commitment underwritten public offering and fewer than 1075% of the Registrable Securities requested by the Holders to be included offered thereby have been sold in the registration are not so included pursuant to Section 2.1(b), such offering or (Eiii) if the conditions to closing specified in any underwriting agreement, purchase agreement or purchase similar agreement entered into in connection with the registration relating to such request that are applicable to the Company or its Affiliates, accountants, attorneys, agents or representatives are not satisfied or waived (other than by reason of any action or failure to act on the part of any Initiating Holder).
(e) In the event that the Company files a shelf registration statement under Rule 415 of the Securities Act pursuant to a Demand Registration Request and such registration becomes effective (such registration statement, a “Shelf Registration Statement”), the Initiating Holders with respect to such Demand Registration Request and the Holders of other Registrable Securities registered on such Shelf Registration Statement shall have the right at any time (other than during a Postponement Period) or from time to time to elect to sell pursuant to an underwritten offering Registrable Securities available for sale pursuant to such registration statement (“Shelf Registrable Securities”). The Initiating Holders and such other Holders shall make such election by delivering to the Company a written request (a “Shelf Underwriting Request”) for such underwritten offering to the Company specifying the number of Shelf Registrable Securities that the Holders desire to sell pursuant to such underwritten offering (the “Shelf Underwriting”). As promptly as a result reasonably practicable, but no later than two (2) Business Days after receipt of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contraryShelf Underwriting Request, the Company will pay shall give written notice (the “Shelf Underwriting Notice”) of such Shelf Underwriting Request to all expenses other Holders of record of Shelf Registrable Securities. The Company, subject to Sections 2.3 and 2.6, shall include in such Shelf Underwriting (in accordance with Section 2.8x) in connection with the Registrable Securities of the Initiating Holders and (y) the Shelf Registrable Securities of any other Holder of Shelf Registrable Securities which shall have made a written request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, Company for inclusion in such Shelf Underwriting (which request shall specify the maximum number of Shelf Registrable Securities intended to be disposed of by such Holder) within five (5) days after the receipt of the Shelf Underwriting Notice. The Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall fileshall, as promptly as reasonably practicable (and in any event within twenty (20) days after the execution receipt of a Shelf Underwriting Request), but subject to Section 2.1(b), use its commercially reasonable efforts to facilitate such Shelf Underwriting. Notwithstanding the foregoing, if any of the GSAM Entities wishes to engage in an underwritten block trade or similar transaction or other transaction with a two (2)-day or less marketing period (collectively, “Underwritten Block Trade”) off of a Shelf Registration Statement (either through filing an automatic shelf registration statement or through a take-down from an already existing Shelf Registration Statement), then notwithstanding the foregoing time periods, such Holder need only notify the Company of the Underwritten Block Trade at least two (2) Business Days prior to the day such offering is to commence and delivery the Company shall use commercially reasonable efforts to notify other Holders of Shelf Registrable Securities on the same day it is so notified and other Holders of Shelf Registrable Securities must elect whether or not to participate on the Business Day prior to the day such offering is to commence, and the Company shall as expeditiously as possible use its commercially reasonable efforts to facilitate such Underwritten Block Trade (which may close as early as three (3) Business Days after the date it commences), provided, that such Holder shall use commercially reasonable efforts to work with the Company and the underwriters prior to making such request in order to facilitate preparation of the registration statement, prospectus and other offering documentation related to the Underwritten Block Trade. Once a Shelf Registration Statement has been declared effective, the Holders of Registrable Securities may request, and the Company shall be required to facilitate, (i) up to a maximum of two (2) Shelf Underwritings in any twelve-month period and (ii) up to a maximum of four (4) Shelf Underwritings over the term of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding . Notwithstanding anything to the contrary in this Section 2.1(d2.1(e), (i) ofeach Shelf Underwriting must include, in the Registrable Securitiesaggregate (based on the Shares included in such Shelf Underwriting by all Holders participating in such Shelf Underwriting), pursuant to Rule 415 under the Securities Act, to permit the distribution Shares having an aggregate market value of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, at least $50,000,000 and (ii) the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).is no
Appears in 2 contracts
Sources: Registration Rights Agreement (MN8 Energy, Inc.), Registration Rights Agreement (MN8 Energy, Inc.)
Demand Registrations. (a) At any time and from time to time, the Holders’ Representative shall have the right by delivering one or more a written notices notice to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall use its reasonable best efforts to file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year 180 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified qualify for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which Registration shall be filed by the Company as promptly as practicable and shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 2 contracts
Sources: Registration Rights Agreement (Americredit Corp), Registration Rights Agreement (Leucadia National Corp)
Demand Registrations. (a) At any time From and from time to timeafter 180 days after the effective date of the initial public offering of the Company's Common Stock, the Holders’ Representative shall have the right by delivering one or more written notices to if the Company (each, receives in writing a “Demand Notice”) to require request that the Company to, pursuant to effect the terms of this Agreement, register registration under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); providedSecurities, however, that a Demand Notice may only be made if of which at least 10% of the amount of then outstanding Registrable Securities requested to shall be registered is either included in such registration (which offering must have a per share price of not less than $5.00 per share (as adjusted for stock dividends, splits, combinations, reclassification and the like)), the Company will:
(i) at least 20% promptly give written notice of the aggregate number of Registrable Securities then held by proposed registration to all Holders or other Holders; and
(ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly soon as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer prepare and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) file and shall use its reasonable best efforts to cause to become effective such Registration Statement registration statement as may be so requested and as would permit or facilitate the sale and distribution of such portion of the Registrable Securities as is specified in such request, together with such additional portion of the Registrable Securities of any Holder(s) joining in such request as may be specified in a written request given to be declared effective under the Securities Act as promptly as practicable Company within thirty (30) days after receipt of the filing thereofwritten notice from the Company specified in clause (i) above.
(b) No securities If the underwriter managing the offering advises the Holders who have requested inclusion of their Registrable Securities in such registration statement that marketing considerations require a limitation on the number of shares offered, such limitation shall be included under imposed pro rata among such Holders who requested inclusion of Registrable Securities in such registration statement according to the number of shares of Registrable Securities owned by each. Neither the Company nor any Demand Registration Statement related to an underwritten offering other shareholder may include shares in such registration statement without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any Holders of a majority of the Registrable Securities registered pursuant to a Demand Registration are to be sold included therein if the underwriter managing such offering advises the Holders who have included Registrable Securities in a firm commitment underwritten offering, and such registration statement that the managing underwriter(s) inclusion of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on additional shares may either limit the number of Registrable Securities Beneficially Owned by each which can be sold or adversely affect the price at which such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Registrable Securities Beneficially Owned by each such holdercan be sold.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(dNotwithstanding Section 1.3(b) In the event of a Demand Registrationabove, the Company shall use its reasonable best efforts to maintain have the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubtright, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated exercisable by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers written notice to the Holders’ Representative initiating Holders within thirty (30) days after receipt of their request to effect a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit include the distribution Company's shares in such registration, in which event such registration shall be deemed to be a Company-initiated registration, and the Holders shall have the right to include their Registrable Securities and shares of Common Stock, as the case may be, therein to the extent permitted under Section 1.2 above.
(d) The Company shall not be obligated to effect more than three (3) registrations under this Section 1.3. No registration statement initiated by Holders hereunder shall count as a registration under this Section 1.3 unless and until it shall have been declared effective. Any registration requested under this Section 1.3 which shall not become effective solely by reason of the Registrable Securities in accordance refusal of the Holders participating therein to proceed with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing registration shall count as a Short-Form Registration, registration effected under this Section 1.3 unless the Company shall use its reasonable best efforts to keep such Short-Form have been reimbursed for the Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate Expenses incurred by it in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))connection therewith.
Appears in 2 contracts
Sources: Registration Rights Agreement (Penson Worldwide Inc), Registration Rights Agreement (Penson Worldwide Inc)
Demand Registrations. (a) At any time and from time to timeafter the 16-month anniversary of the Closing, ▇▇▇▇▇▇▇▇▇ may request that the Company register the resale of his Registrable Securities, and, upon receipt of such request by the Company, the Holders’ Representative Company shall have the right by delivering one or more written notices use its commercially reasonable efforts to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, promptly register under and in accordance with the provisions of the Securities Act the number any reasonable portion of Registrable Securities owned held by Holders ▇▇▇▇▇▇▇▇▇ (including, at the election of ▇▇▇▇▇▇▇▇▇, in an underwritten offering) and requested by bear all expenses in connection with such Demand Notice offering in a manner consistent with Section 2.3 below and shall enter into such other agreements in furtherance thereof (each such registration pursuant to be so registered (this Section 2.2, a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days provide customary indemnifications in such instances (in a manner consistent with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) indemnification provisions of this Section 2.1), a Registration Statement relating 3) to the offer ▇▇▇▇▇▇▇▇▇ and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by any such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a)underwriters. Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative ▇▇▇▇▇▇▇▇▇ shall have the right to notify initiate up to two (2) Demand Registrations pursuant to this Section 2.2. A registration shall not count as a Demand Registration unless and until the Company registration statement relating thereto has been declared effective by the SEC and not withdrawn; provided that it has determined that the Registration Statement a registration statement relating to a Demand Registration be abandoned or withdrawn, in which event that is withdrawn at the Company request of ▇▇▇▇▇▇▇▇▇ shall promptly abandon or withdraw such count as a Demand Registration. If any Demand Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request requested by ▇▇▇▇▇▇▇▇▇ is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such requestform of an underwritten offering, such registration is adversely affected by any stop order, injunction ▇▇▇▇▇▇▇▇▇ shall designate the underwriter or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders underwriters to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into utilized in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders)offering. Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts shall not be obligated to remain qualified effect a Demand Registration if, at the time of such request, all such Registrable Securities are eligible for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to public by ▇▇▇▇▇▇▇▇▇ without registration under Rule 415 144 under the Securities Act, to permit with such sale not being limited by either the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending timing or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))volume restrictions thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Workstream Inc), Merger Agreement (Workstream Inc)
Demand Registrations. (a) At Upon written notice to the Company delivered by the Lead Investor at any time from and after the Closing Date and from time to time, the Holders’ Representative shall have the right by delivering one or more written notices to the Company time (eacheach such notice, a “Demand Notice” and the date(s) the Lead Investor delivers a Demand Notice to the Company, each a “Demand Date”) to ), the Lead Investor may require the Company to, pursuant to register up to the terms Demand Required Registration Amount of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Demand Registrable Securities owned by Holders and requested by such Demand Notice to be so not previously registered (on a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered hereunder for resale pursuant to a Demand Registration are Statement. The Company shall then (i) within two (2) Business Days after the applicable Demand Date, give written notice thereof to be sold all Investors other than the Lead Investor and (ii) prepare, and, as soon as practicable but in no event later than the applicable Demand Filing Deadline, file with the SEC a firm commitment underwritten offeringDemand Registration Statement on Form F-3 (or the applicable form) covering the resale of all of the Demand Registrable Securities set forth in the Demand Notice. Upon receipt of a notice by the Company pursuant to clause (i) of the immediately preceding sentence, any Investor may notify the Company in writing within five (5) Business Days of receipt of such notice from the Company that it wishes to have all or any portion of its Demand Registrable Securities included in the applicable Demand Registration Statement, and the managing underwriter(s) of Company shall treat each such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Investor’s Demand Registrable Securities proposed to be sold in as if such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Demand Registrable Securities to be so included together with all such Other Securities, then there shall be were included in the applicable Demand Notice. In the event that Form F-3 is unavailable for such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) firsta registration, the Registrable Securities Company shall use such other form as is available for which inclusion in such demand offering was requested by a registration on another appropriate form reasonably acceptable to the Required Holders, pro rata (if applicablesubject to the provisions of Section 2(e), based on . Each Demand Registration Statement prepared pursuant hereto shall register for resale at least the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) secondADSs set forth in the applicable Demand Notice, among any holders of Other Securitieswhich shall not exceed, pro ratain the aggregate, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Required Registration Amount. Each Demand Registration Statement shall contain (except if otherwise directed by the Required Holders) the “Plan of Distribution” and “Selling Stockholders” sections in any six month period.
(d) In substantially the event of a Demand Registration, the form attached hereto as Exhibit B. The Company shall use its reasonable best efforts to maintain the continuous effectiveness of have the applicable Demand Registration Statement for declared effective by the SEC as soon as practicable, but in no event later than the applicable Demand Effectiveness Deadline. By 9:30 a.m. New York time on the Business Day following the applicable Demand Effective Date, the Company shall file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Demand Registration Statement. The Lead Investor shall have the right to five (5) Demand Registration Statements hereunder; provided, however, the Lead Investor may withdraw a period of at least one year after the effective date thereof or Demand Notice and such shorter period in which all Registrable Securities included in such Demand Notice shall not count as a Demand Registration Statement have actually been sold. For hereunder if the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of Lead Investor bears all expenses incurred by the Company to maintain regarding such withdrawn Demand Notice; provided, further, that the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for Lead Investor may withdraw a reasonable period of time not in excess of 60 days (Demand Notice without bearing such expenses and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a without forfeiting such Demand Registration Statement if the Company delivers Lead Investor (i) has learned of a PublicCo Material Adverse Effect (as defined in the Securities Purchase Agreement) that was not known to the Holders’ Representative a certificate signed by both Lead Investor at the Chief Executive Officer and Chief Financial Officer of time it delivered the applicable Demand Notice to the Company certifying that, in and (ii) has withdrawn the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere applicable Demand Notice with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration reasonable promptness following disclosure by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Companysuch PublicCo Material Adverse Effect.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 2 contracts
Sources: Securities Purchase Agreement (Cellect Biotechnology Ltd.), Registration Rights Agreement (Cellect Biotechnology Ltd.)
Demand Registrations. (a) At Subject to Section 5.1(d), at any time and from time to timetime after the one-year anniversary of the Closing, the Holders’ Representative any Holder shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act and/or a prospectus under applicable Canadian securities laws covering all or any part of their respective Registrable Securities, by delivering a written request therefor to the Company specifying the number of Registrable Securities owned by Holders and requested to be included in such registration by such Holder(s) and the intended method of distribution thereof. All such requests pursuant to this Section 5.1(a) are referred to herein as "Demand Notice Registration Requests" and the registrations so requested are referred to be so registered herein as "Demand Registrations" (a “with respect to any Demand Registration”, the Holder making such demand for registration being referred to as the "Initiating Holder"); provided. As promptly as practicable, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following but no later than 15 days after receipt of a Demand NoticeRegistration Request, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by give written notice (the Company "Demand Exercise Notice") of such Demand Notice (subject Registration Request to paragraph (e) all Holders of this Section 2.1), a Registration Statement relating to the offer and sale record of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofSecurities.
(b) No securities The Company shall be included under any include in a Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of (i) the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, of the Initiating Holder and the managing underwriter(s(ii) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities of any other Holder (collectively, the "Other Holders") that shall have made a written request to be so included together with all such Other Securities, then there shall be included the Company for inclusion thereof in such offering registration (which request shall specify the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such maximum number of Registrable Securities and Other Securities shall intended to be allocated for inclusion as follows:
(idisposed of by such Holder(s)) first, within 30 days after the Registrable Securities for which inclusion in such demand offering was requested by receipt of the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holderDemand Exercise Notice.
(c) The Company shall, as expeditiously as possible following a Demand Registration Request, use its best efforts to (i) effect the registration under the Securities Act (including by means of a shelf registration pursuant to Rule 415 under the Securities Act if so requested and if the Company is then eligible to use such a registration) of the Registrable Securities which the Company has been so requested to register by such Holder, for distribution, in accordance with such intended method of distribution, and (ii) if requested by the Initiating Holder, obtain acceleration of the effective date of the registration statement relating to such registration.
(d) The rights of Holders collectively of Registrable Securities to request Demand Registrations pursuant to Section 5.1(a) are subject to the following limitations: (i) the Company shall not be obligated to effect a Demand Registration within six months after the effective date of any other registration of equity securities by the Company (other than pursuant to a registration on Form S-4 or Form S-8 or any successor or similar form that is then in effect) which was not effected on Form S-3 (or any successor or similar short-form registration statement), provided, however, that this clause (i) shall not be applicable with respect to any Registrable Securities beneficially owned by any Holder if in connection with a Piggyback Registration such Holder requested during such six month period to have such Registrable Securities included in such Piggyback Registration and Registrable Securities with 43 39 a Current Market Value exceeding $25,000,000 (valued at the time of such request) were not included pursuant to Section 5.2(d), (ii) in no event shall the Company be required to effect, in the case of SPE, more than four Demand Registrations, in the case of USI, more than four Demand Registrations, and, in the case of the Claridge Group, more than one Demand Registration, (iii) the Company shall not be obligated to effect a Demand Registration by either SPE or USI if a Demand Registration initiated by either SPE or USI shall have been effected in the preceding 12 months, and (iv) the Company shall not be obligated to effect a Demand Registration the reasonably anticipated aggregate price to the public of which would not exceed $25,000,000. Upon assignment by a Stockholder of the right to initiate a Demand Registration to a Third Party Transferee in accordance with Section 4.5(b)(iv), such Stockholder shall cease to have the right to initiate such Demand Registration and the number of Demand Registrations to which such Stockholder shall be entitled to request no more than three Demand Registrations of as set forth in the Company, and in preceding sentence shall be reduced accordingly. In no event shall the Company be required to effect more than one nine Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts Registrations pursuant to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h)this Agreement.
(e) The Company shall select the registration statement form for any registration pursuant to this Section, provided, that if any registration requested pursuant to this Section which is proposed by the Company to be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), effected by the filing of a registration statement on Form S-3 (or initial effectiveness ofany successor or similar short-form registration statement) shall be in connection with an underwritten public offering, or suspend the use of, a Demand Registration Statement and if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of managing underwriter shall advise the Company certifying in writing that, in its opinion, the good faith judgment use of the Board another form of Directors registration statement is of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed importance to the publicsuccess of such proposed offering, the premature disclosure of which would materially adversely affect the Companythen such registration shall be effected on such other form.
(f) A registration requested pursuant to this Section 5.1 will not be deemed to have been effected unless it has become effective, provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is subject to any stop order, injunction or other order or requirement of the Commission or other governmental agency or court, such registration will be deemed not to have been effected.
(g) If a requested registration pursuant to this Section involves an underwritten offering, the Company shall have the right to select in good faith the investment banker or bankers and managers to administer the offering; provided, however, that such investment banker or bankers and managers shall be reasonably satisfactory to the Initiating Holder. The Holders’ Representative Initiating Holder shall notify the Company if such Holder objects to any investment banker or manager selected by the Company pursuant to this Section 5.1(g) within 10 Business Days after the Company has notified such Holder of such selection.
(h) If the managing underwriter of any underwritten offering shall advise the Holders participating in a Demand Registration that the Registrable Securities covered by the registration statement cannot be sold in such offering within a price range acceptable to the Initiating Holder, then the Initiating Holder shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration registration statement be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
registration statement. If a requested registration pursuant to this Section 5.1 involves an underwritten offering and the managing underwriter advises the Company that, in its opinion, the number of securities requested to be included in 44 40 such registration (g) No request for registration will count for the purposes including securities of the limitations Company which are not Registrable Securities) exceeds the number which can be sold in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior such offering within a price range acceptable to the effectiveness of Initiating Holder, the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included Company will include in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of only the Registrable Securities requested to be included in such registration pursuant to this Section 5.1. In the event that the number of Registrable Securities requested to be included in such registration exceeds the number which, in the opinion of such managing underwriter, can be sold in such offering within a price range acceptable to the Initiating Holder, the Company shall include in such registration the number of Registrable Securities proposed to be sold by the Initiating Holder and, to the extent the managing underwriter believes that additional Registrable Securities can be sold in such offering within such price range, the number of Registrable Securities proposed to be sold by the Other Holders, allocated pro rata among the Other Holders on the basis of the relative number of shares of Registrable Securities requested to be registered pursuant to clause (ii) of Section 5.1(b) by each such Holder. In the event that the number of Registrable Securities requested by all Holders to be included in such registration is less than the registration are not so included pursuant to Section 2.1(b)number which, or (E) in the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with opinion of the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrarymanaging underwriter, can be sold, the Company will pay all expenses (may include in accordance with Section 2.8) such registration a number of securities that the Company proposes to sell up to the number of securities that, in connection with any request for registration pursuant the opinion of the underwriter, can be sold in such offering within a price range acceptable to this Agreement regardless of whether or not such request counts toward the limitation set forth aboveInitiating Holder.
(hi) In addition to the foregoing, If the Company will use its reasonable best efforts at any time grants to remain qualified for any other holders of Voting Shares (or securities that are convertible, exchangeable or exercisable into Voting Shares) any rights to request the Company to effect the registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) Act of any such Voting Shares (or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”such securities) and on terms more favorable to such holders than the Company shall fileterms set forth in this Section 5.1, as promptly as reasonably practicable after then the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration Holders shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related entitled to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))more favorable rights and benefits.
Appears in 1 contract
Demand Registrations. (ai) At Subject to Section 2.1(c), at any time and or from time to timetime after the six month anniversary of the first date on which the Company shall have effected the registration under the Securities Act of any shares of Common Stock, the Holders’ Representative one or more Holders shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company toto file a registration statement under the Securities Act covering such aggregate number of Registrable Securities that either (A) has an aggregate value of at least $20 million (based on the market price of the Common Stock as of the date of the Demand Registration Request), pursuant (B) represents 10% or greater of the then outstanding Registrable Securities (based on the market price of the Common Stock as of the date of the Demand Registration Request) or (C) represents all then remaining Registrable Securities subject to the terms of this Agreement, register under and in accordance with by delivering a written request therefor to the provisions of the Securities Act Company specifying the number of Registrable Securities owned to be included in such registration by such Holders and the intended method of distribution thereof. All such requests by any Holder pursuant to this Section 2.1(a)(i) are referred to as “Demand Registration Requests,” the registrations so requested by are referred to as “Demand Registrations” and the Holders making such demand for registration are referred to as the “Initiating Holders.” As promptly as practicable, but no later than 10 days after receipt of a Demand Notice to be so registered Registration Request, the Company shall give written notice (a “Demand RegistrationExercise Notice”) of such Demand Registration Request to all Holders of record of Registrable Securities.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (A) the Registrable Securities of the Initiating Holders and (B) the Registrable Securities of any other Holder of Registrable Securities that shall have made a written request to the Company within the time limits specified below for inclusion in such registration (together with the Initiating Holders, the “Participating Holders”). Any such request from the other Holders must be delivered to the Company within 15 days after the receipt of the Demand Exercise Notice and must specify the number of Registrable Securities intended to be included in such registration by such other Holders.
(iii) The Company, as expeditiously as possible but subject to Section 2.1(c), shall use its commercially reasonable efforts to effect such registration under the Securities Act of the Registrable Securities that the Company has been so requested to register for distribution in accordance with such intended method of distribution.
(b) Registrations under this Section 2.1 shall be on such appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which form shall be selected by the Company and shall be reasonably acceptable to the Majority Participating Holders.
(c) The Demand Registration rights granted in Section 2.1(a) to the Holders are subject to the following limitations:
(i) the Company shall not be required to cause a registration statement pursuant to Section 2.1(a) to be filed within 90 days or to be declared effective within a period of 180 days after the effective date of any other registration statement of the Company filed pursuant to the Securities Act;
(ii) if (A) in the opinion of outside counsel to the Company, any registration of Registrable Securities would require disclosure of information not otherwise then required by law to be publicly disclosed and, in the good faith judgment of the board of directors of the Company (the “Board”), such disclosure is reasonably likely to adversely affect any financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Company or otherwise have a material adverse effect on the Company (a “Valid Business Reason”) or (B) the Board determines for any reason, but in no event more than twice within any period of 365 consecutive days, that any registration of Registrable Securities would not be advisable, the Company may postpone or withdraw a filing of a registration statement relating to a Demand Registration Request until such Valid Business Reason no longer exists (under (A) of this clause (ii)) or until the Board changes its determination (under (B) of this clause (ii)), but in no event shall the Company avail itself of such right for more than 90 days, in the aggregate, in any period of 365 consecutive days (such period of postponement or withdrawal under this clause (ii), the “Postponement Period”); and the Company shall give notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists or that the Board has changed its determination, in each case, promptly after the occurrence thereof; and
(iii) the Company shall not be obligated to effect more than five Demand Registrations in the aggregate under Section 2.1(a) for the Holders. If the Company shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (ii) above, the Company shall not register any equity security of the Company during the period of postponement or withdrawal. Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw any registration statement pursuant to clause (ii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Company shall have withdrawn or prematurely terminated a registration statement filed under Section 2.1(a)(i), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists or the Board changes its determination (but in no event more than 90 days after the date of the postponement or withdrawal), the Company shall use its commercially reasonable efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1.
(d) The Company, subject to Sections 2.3 and 2.6, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), (i) authorized but unissued shares of Common Stock or shares of Common Stock held by the Company as treasury shares and (ii) any other shares of Common Stock that are requested to be included in such registration pursuant to the exercise of piggyback rights granted by the Company that are not inconsistent with the rights granted in, or otherwise conflict with the terms of, this Agreement (“Additional Piggyback Rights”); provided, however, that such inclusion shall be permitted only to the extent that it is pursuant to and subject to the terms of the underwriting agreement or arrangements, if any, entered into by the Participating Holders.
(e) Subject to the terms of any underwritten offering, a Holder may withdraw its Registrable Securities from a Demand Notice may only Registration at any time. If all such Holders do so, the Company shall cease all efforts to secure registration and such registration nonetheless shall be made if the amount deemed a Demand Registration for purposes of Registrable Securities requested to be registered is either this Section 2.1 unless (i) at least 20% the withdrawal is made following withdrawal or postponement of such registration by the aggregate number of Registrable Securities then held Company pursuant to (A) a Valid Business Reason or (B) a determination by all Holders the Board, in either case as contemplated by Section 2.1(c) or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice the Holders who requested such registration shall also specify have paid or reimbursed the expected method or methods of disposition Company for all of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt reasonable out-of-pocket fees and expenses incurred by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance connection with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofwithdrawn registration.
(bf) No securities shall be included under any A Demand Registration Statement related shall not be deemed to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, have been effected and the managing underwriter(s) of shall not count as such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, unless a registration statement with respect thereto has become effective and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement has remained effective for a period of at least one year after the effective date thereof 180 days or such shorter period in during which all Registrable Securities included in covered by such Registration Statement have actually been sold. For the avoidance of doubtsold or withdrawn, the foregoing sentence is not intended or, if such Registration Statement relates to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period)an underwritten offering, for a reasonable such longer period of time not in excess of 60 days (and not for periods exceedingas, in the aggregate, 90 days during any twelve-month periodopinion of counsel for the underwriter(s), the filing or initial effectiveness of, or suspend the use of, is required by law for delivery of a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, prospectus in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere connection with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in by an underwriter or dealer, (ii) if, after the applicable registration relating statement with respect thereto has become effective, it becomes subject to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity governmental agency or courtcourt for any reason, (Diii) more than 10% of the Registrable Securities requested if it is withdrawn by the Holders to be included in the registration are not so included Company pursuant to Section 2.1(b), (A) a Valid Business Reason or (EB) a determination by the Board, in either case as contemplated by Section 2.1(c) or (iv) if the conditions to closing to be performed by the Company, its counsel or its independent public accountants specified in any underwriting the purchase agreement or purchase underwriting agreement entered into in connection with the registration relating to such request Demand Registration are not satisfied (satisfied, other than as a result solely by reason of a material default some act or breach thereunder by omission of the applicable Participating Holders). Notwithstanding anything to the contrary, the Company will pay all expenses .
(in accordance with Section 2.8g) in In connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, Demand Registration in which the Company will use its reasonable best efforts to remain qualified for participates by demanding registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) of authorized but unissued Common Stock or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and of Common Stock held by the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registrationtreasury shares, the Company shall use its reasonable best efforts to keep designate the lead managing underwriter in connection with such Short-Form registration and each other managing underwriter for such registration. In connection with any Demand Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and in which the Company does not so participate, the Majority Participating Holders shall cooperate designate the lead managing underwriter in any shelf take-down by amending or supplementing the Prospectus related to connection with such Short-Form Registration as may be registration and each other managing underwriter for such registration, provided that each such underwriter is reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything satisfactory to the contrary in Section 2.1(d))Company.
Appears in 1 contract
Sources: Registration Rights Agreement (Liquid Holdings Group LLC)
Demand Registrations. (a) At From and after the expiration of the Restricted Period, subject to the terms and conditions hereof (x) solely during any time and from time period that the Company is then-ineligible under Applicable Law to timeregister Registrable Securities on Form S-3 pursuant to Section 5.3 or, if the Holders’ Representative Company is so eligible but has failed to comply with its obligations under Section 5.3 or (y) following the expiration of the Company’s obligation to keep the Shelf Registration Statement continuously effective pursuant to Section 5.3(c), but only if there is no Shelf Registration Statement then in effect, any Demand Shareholders (“Requesting Shareholders”) shall have be entitled to make, in the right by delivering one or more aggregate across all Demand Shareholders, five (5) written notices to requests of the Company (each, a “Demand NoticeDemand”) to require for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders that equals or is greater than the Registrable Amount (a “Demand Registration”). Thereupon the Company towill, pursuant subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register under and by the Requesting Shareholders for disposition in accordance with the provisions intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which the Securities Act Company has been requested to register pursuant to Section 5.1(b), but subject to Section 5.1(g); and
(iii) all shares of Company Common Stock which the number Company may elect to register in connection with any offering of Registrable Securities owned by Holders pursuant to this Section 5.1, but subject to Section 5.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and requested by such Demand Notice the additional shares of Company Common Stock, if any, to be so registered registered.
(a “b) A Demand Registration”); provided, however, that a Demand Notice may only be made if shall specify: (i) the amount aggregate number of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or in such Demand Registration, (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected intended method or methods of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the applicable Registrable SecuritiesRequesting Shareholder(s). Following Within three (3) Business Days after receipt of a Demand NoticeDemand, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days give written notice of such Demand to all other holders of Registrable Securities. The Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by which the Company of such Demand Notice has received a written request for inclusion therein within ten (10) days after the Company’s notice required by this paragraph has been given, subject to paragraph (e) Section 5.1(g). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2.15.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one A Demand Registration in any six month period.
(d) In the event of shall not be deemed to have been effected and shall not count as a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement (i) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least one year after the effective date thereof hundred eighty (180) days or such shorter period in which all Registrable Securities included in such Demand Registration Statement have actually been sold. For the avoidance of doubtsold thereunder (provided, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company that such period shall be entitled to postpone (but not more than once in any six-month period), extended for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers equal to the Holders’ Representative a certificate signed by both period the Chief Executive Officer and Chief Financial Officer holder of Registrable Securities refrains from selling any securities included in such registration statement at the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing request of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed lead managing underwriter(s) pursuant to the publicprovisions of this Agreement) or (ii) if, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that after it has determined that the Registration Statement relating to a become effective, such Demand Registration be abandoned or withdrawnbecomes subject, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating one hundred eighty (180) days after effectiveness, to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC Commission or other Governmental Entity Authority such that no sales are possible thereunder for a period of ten consecutive days or courtmore, other than by reason of any act or omission by the applicable Selling Shareholders.
(Dd) more Demand Registrations shall be on such appropriate registration form of the Commission as shall be selected by the Company and reasonably acceptable to the Requesting Shareholders.
(e) The Company shall not be obligated to (i) subject to Section 5.1(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration, for a period longer than 10one hundred eighty (180) days or (ii) effect any Demand Registration (A) within six (6) months of a “firm commitment” Underwritten Offering in which all Demand Shareholders were offered “piggyback” rights pursuant to Section 5.2 (subject to Section 5.2(b)) and at least 75% of the number of Registrable Securities requested by the Holders such Demand Shareholders to be included in such Demand Registration were included and sold, (B) within six (6) months of the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in completion of any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 Demand Registration (including, without limitationfor the avoidance of doubt, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Actany Marketed Underwritten Offering pursuant to any Shelf Registration Statement) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”C) and if, in the Company’s reasonable judgment, it is not feasible for the Company shall file, as promptly as reasonably practicable after to proceed with the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution Demand Registration because of the Registrable Securities in accordance with the methods unavailability of distribution elected by the Holdersaudited or other required financial statements or other required information; provided, including by means of an underwritten offering. Upon filing a Short-Form Registration, that the Company shall use its reasonable best efforts to keep obtain such Short-Form Registration effective with the SEC at all times and any Short-Form Registration financial statements or information as promptly as practicable.
(f) The Company shall be re-filed entitled to postpone (upon its expirationwritten notice to the Demand Shareholders) the filing or the effectiveness of a registration statement for any Demand Registration in the event of a Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period under clause (ii) of the definition thereof, and the Company shall cooperate deliver to the Demand Shareholders requesting registration a certificate signed by either the chief executive officer or the chief financial officer of the Company certifying that the conditions described in clause (ii) of the definition of Blackout Period are met.
(g) If, in connection with a Demand Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its (their) opinion, the inclusion of all of the securities sought to be registered in connection with such Demand Registration would adversely affect the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Demand Shareholders (or any shelf takeother Investor (with respect to its Registrable Securities)), which, in the opinion of the lead managing underwriter(s), can be sold without adversely affecting the success thereof, pro rata among such Demand Shareholders (and other Investors) on the basis of the number of such Registrable Securities requested to be included by such Demand Shareholders (and other Investors); (ii) second, up to the number of Registrable Securities requested to be included in such Demand Registration by other holders of Registrable Securities, pro rata on the basis of the amount of such Registrable Securities requested to be included by such holders; (iii) third, securities the Company proposes to sell; and (iv) fourth, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or such other allocation method determined by the Company.
(h) Any time that a Demand Registration involves an Underwritten Offering, the Requesting Shareholders shall select the investment banker(s) and manager(s) that will serve as managing underwriters (including which such managing underwriters will serve as lead or co-down by amending or supplementing lead) and underwriters with respect to the Prospectus related to offering of such Short-Form Registration as may Registrable Securities; provided, that such investment banker(s) and manager(s) shall be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything acceptable to the contrary in Section 2.1(d)Company (such acceptance not to be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Demand Registrations. (a) At any time (x) on or after December 31, 2015 one or more Holders Beneficially Owning Registrable Securities (A) representing at least fifteen percent (15%) of the then-outstanding shares of Registrable Securities or (B) that are reasonably expected to result in aggregate gross cash proceeds in excess of $50 million (without regard to any underwriting discount or commission), or (y) on or after the one hundred and from time to timeeightieth (180th) day following the occurrence of an Initial Public Offering, the Pine Brook Shareholders (such Holders’ Representative , or the Pine Brook Shareholders, as the case may be, the “Demanding Holders”) shall have the right right, by delivering one or more written notices notice to the Company (each, a “Demand Notice”) ), to require the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned Beneficially Owned by such Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, ; however, that it shall be a condition to making a Demand Notice may only Registration that is to be made if an underwritten offering under clause (y) above that the amount aggregate offering price of the Registrable Securities requested to be registered by the Demanding Holders in such underwritten Demand Registration is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million25,000,000. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities, including whether such Demand Registration is to be an underwritten offering. Upon receipt of such Demand Notice, the Company will notify all other Holders (other than the Demanding Holders) in writing and such other Holders shall have the right to request the Company to include all or a portion of such other Holders’ Registrable Securities in such Demand Registration by written notice delivered to the Company within fifteen (15) calendar days after such notice is given by the Company.
(b) Following receipt of a Demand Notice, subject to Section 2(c), Section 4 and, Section 6 and Section 16(h), the Company shall will use its reasonable best efforts to file, as promptly as reasonably practicable, practicable (but not later than, 60 than ninety (90) calendar days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice in the case of a registration made on Form S-1 or comparable successor form, as applicable, or sixty (subject 60) calendar days in the case of any registration eligible to paragraph (e) of this Section 2.1be made on Form S-3 or comparable successor form, as applicable), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Demand Holders (a “Demand Registration Statement”to the extent not prohibited by applicable Law) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
thereof (band in any event in accordance with Section 5), provided that if such Demand Notice relates to a Shelf Registration Statement, the provisions of Section 4 shall apply. The Holders shall have the right to request two (2) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein registrations per year pursuant to this Section 2.1(a)2. Subject to the preceding sentence, if any Demanding Holders holding at least a majority of the Registrable Securities registered held by the Demanding Holders shall have the right to notify the Company that they have determined that the Registration Statement and/or Shelf Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement and/or Shelf Registration Statement. In the event any registration attempted under this Section 2 pursuant to which the Company would be responsible for the Registration Expenses of the Holders is not consummated, then the Company shall pay such expenses and shall remain responsible for such expenses of the Holders with respect to two (2) consummated registrations per year made under this Section 2; provided, however, that if a registration attempted under this Section 2 is not consummated solely as a result of the withdrawal of the Holders requesting such registration, unless such Holders reimburse the Registration Expenses incurred by the Company, such Registration Statement shall count against the two (2) Registration Statements that the Company is required to a consummate per year. In any Demand Registration involving an underwritten offering, the investment banker or investment bankers and manager or managers that will administer the offering will be selected by the Demanding Holders, subject to approval of the Company not to be unreasonably withheld.
(c) A Registration Statement filed pursuant to a Demand Registration are Notice may include Other Securities; provided, however, that the Company and any other such requesting holders agree in writing to be sold in a firm commitment underwritten offeringenter into an underwriting agreement with usual and customary terms and to any lock-up or similar limitations applicable to the Holders. Notwithstanding any other provisions of this Section 2, if the representative of the underwriters advises the Holders and the managing underwriter(s) of such underwritten offering advise the Holders Company in writing (a “Cutback Notice”) that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such underwritten offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
: (i) first, to the Holder(s) requesting inclusion in such registration, pro rata among such Holder(s) on the basis of the number of shares of Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
Holder has requested registration, (ii) second, among to the Company for any securities it proposes to sell for its own account, and (iii) third, to the other holders of Other Securitiesrequesting inclusion in the registration, pro rata, based rata among the respective holders thereof on the basis of the number of Other Securities Beneficially Owned by shares for which each such holder.
(c) The Holders collectively requesting holder has requested registration. If a Person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such Person shall be entitled to request no more than three Demand Registrations of excluded therefrom by written notice from the Company, and the underwriter or the Holder(s). The securities so excluded shall also be withdrawn from registration. A registration shall not be counted as “consummated” for purposes of the two (2) registrations per year requirement if, as a result of a Cutback Notice, fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in no event shall the Company be required to effect more than one Demand Registration in any six month periodsuch registration statement are actually included.
(d) In the event of a Demand RegistrationExcept as provided in Section 2(b) with respect to withdrawn Registration statements, the Company shall use its reasonable best efforts to maintain the continuous effectiveness all Registration Expenses of the applicable Registration Statement for a period of at least one Holders incurred in connection with two (2) registrations per year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended requested pursuant to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by this Section 2.1(h) as required by Section 2.1(h).
(e) The Company 2 shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed borne by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Sources: Registration Rights Agreement (Origin Bancorp, Inc.)
Demand Registrations. (a) At (i) Subject to Sections 2.1(b) and 2.3, at any time and from time to timetime after the closing of the IPO, the Holders’ Representative any GSCP Member shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file one or more registration statements under and in accordance with the provisions of the Securities Act covering all or any part of its and its Affiliates Registrable Securities by delivering a written request therefor to the Company specifying the number of Registrable Securities owned by Holders and requested by such Demand Notice to be included in such registration and the intended method of distribution thereof. Any such request by any GSCP Member pursuant to this Section 2.1(a)(i) is referred to herein as a “Demand Registration Request,” and the registration so registered (requested is referred to herein as a “Demand Registration” (with respect to any Demand Registration, the GSCP Member(s) making such demand for registration being referred to as the “Initiating Holder(s)”); provided. As promptly as practicable, however, that but no later than five (5) Business Days after receipt of a Demand Notice may only be made if Registration Request, the amount Company shall give written notice (the “Demand Exercise Notice”) of such Demand Registration Request to all Holders of record of Registrable Securities.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities requested to be registered is either (i) at least 20% of the aggregate Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities, which shall have made a written request to the Company for inclusion in such registration pursuant to Section 2.2 (which request shall specify the maximum number of Registrable Securities then held intended to be disposed of by all Holders or such Participating Holder) within thirty (ii30) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify days after the expected method or methods of disposition receipt of the applicable Registrable Securities. Following receipt Demand Exercise Notice (or fifteen (15) days if, at the request of a Demand Noticethe Initiating Holders, the Company shall filestates in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form S-3).
(iii) The Company shall, as promptly expeditiously as reasonably practicablepossible, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.12.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause (x) effect such Registration Statement to be declared effective registration under the Securities Act as promptly as practicable after (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the filing thereofSecurities Act if so requested and if the Company is then eligible to use such a registration) of the Registrable Securities which the Company has been so requested to register, for distribution in accordance with such intended method of distribution, including a distribution to, and resale by, the members or partners of a Holder (a “Partner Distribution”) and (y) if requested by the GSCP Members, obtain acceleration of the effective date of the registration statement relating to such registration.
(iv) Notwithstanding anything contained herein to the contrary, the Company shall, at the request of any Holder seeking to effect a Partner Distribution, file any prospectus supplement or post-effective amendments and to otherwise take any action necessary to include therein all disclosure and language deemed necessary or advisable by such Holder if such disclosure or language was not included in the initial registration statement, or revise such disclosure or language if deemed necessary or advisable by such Holder, to effect such Partner Distribution.
(b) No securities shall be included under any Notwithstanding anything to the contrary in Section 2.1(a), the Demand Registration Statement related rights granted in Section 2.1(a) are subject to an underwritten offering without the written consent of following limitations: (i) the Holders’ Representative, except Registrable Securities requested Company shall not be required to be included therein cause a registration pursuant to Section 2.1(a). Subject 2.1(a)(i) to be declared effective within a period of one hundred and eighty (180) days after the effective date of any other registration statement of the Company filed pursuant to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such HolderAct; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company shall not be required to effect more than five (5) Demand Registrations for the GSCP Members (it being understood that if a single Demand Registration Request is delivered by more than one GSCP Member, the registration requested by such Demand Registration Request shall constitute only one Demand Registration Registration); and (iii) if the Board, in its good faith judgment, determines that any six month period.
(d) In the event registration of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is should not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing made or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use continued because it would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of financing, acquisition, corporate reorganization or merger or other transaction or event involving the Company or any imminent material transaction under consideration by of its subsidiaries (a “Valid Business Reason”), then (x) the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement may postpone filing a registration statement relating to a Demand Registration Request until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than three (3) months after the date the Board determines a Valid Business Reason exists and (y) in case a registration statement has been filed relating to a Demand Registration Request, if the Valid Business Reason has not resulted from actions taken by the Company, the Company may cause such registration statement to be abandoned withdrawn and its effectiveness terminated or withdrawnmay postpone amending or supplementing such registration statement until five (5) Business Days after such Valid Business Reason no longer exists, but in which no event for more than three (3) months after the date the Board determines a Valid Business Reason exists (such period of postponement or withdrawal under this clause (iii), the “Postponement Period”); and the Company shall promptly abandon give written notice of its determination to postpone or withdraw such Registration Statement.
(g) No request for a registration will count for the purposes statement and of the limitations fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in Section 2.1(ceach case, promptly after the occurrence thereof; provided, however, the Company shall not be permitted to postpone or withdraw a registration statement after the expiration of any Postponement Period until nine (9) if: months after the expiration of such Postponement Period. If the Company shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (Aiii) above, the Holders’ Representative determines Company shall not, during the period of postponement or withdrawal, register any Common Equity, other than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in good faith effect). Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw the proposed any registration prior statement pursuant to the effectiveness clause (iii) above, such Holder will discontinue its disposition of the Registration Statement relating Registrable Securities pursuant to such request due to marketing conditions or regulatory reasons relating to registration statement and, if so directed by the Company, will deliver to the Company (Bat the Company’s expense) the Registration Statement relating to all copies, other than permanent file copies, then in such request is not declared effective within 60 days Holder’s possession of the date prospectus covering such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included that was in effect at the applicable time of receipt of such notice. If the Company shall have withdrawn or prematurely terminated a registration relating statement filed under Section 2.1(a)(i) (whether pursuant to such request, such registration is adversely affected by clause (iii) above or as a result of any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), (D) more than 10% the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities requested covered by the Holders to be included in withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the registration are not so included pursuant to Section 2.1(b), Company shall give any notice of withdrawal or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result postponement of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contraryregistration statement, the Company will pay all expenses shall, not later than five (5) Business Days after the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in accordance with Section 2.8no event later than three (3) in connection with any request for registration pursuant to this Agreement regardless months after the date of whether the postponement or not such request counts toward the limitation set forth above.
(h) In addition to the foregoingwithdrawal), the Company will use its reasonable best efforts to remain qualified for effect the registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the methods Initiating Holders shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of distribution elected by the Holdersthis Agreement), including by means and such registration shall not be withdrawn or postponed pursuant to clause (iii) of an underwritten offering. Upon filing a Short-Form Section 2.1(b) above.
(c) In connection with any Demand Registration, the Company shall use its reasonable best efforts have the right to keep designate the lead managing underwriter (any lead managing underwriter for the purposes of this Agreement, the “Manager”) in connection with such Short-Form Registration effective with the SEC at all times registration and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to each other managing underwriter for such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (registration; provided that in each case, notwithstanding anything each such underwriter is reasonably satisfactory to the contrary in Section 2.1(d))GSCP Members.
Appears in 1 contract
Sources: Registration Rights Agreement (South Texas Supply Company, Inc.)
Demand Registrations. (a) At Subject to the terms and conditions of this Agreement, at any time and from time to timetime after the third anniversary of the date hereof, the Holders’ Representative Holders shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act covering all or any part of their Registrable Securities on six separate occasions in the aggregate, by delivering a written request therefor to the Company specifying the number of Registrable Securities owned by Holders to be included in such registration and the intended method of distribution thereof (including, but not limited to, an underwritten offering). All such requests pursuant to this Section 2.1(a) are referred to herein as "Demand Registration Requests," and the registrations so requested by are referred to herein as "Demand Registrations" (with respect to any Demand Registration, the Holder making such demand for registration being referred to as the "Initiating Holder"). As promptly as practicable, but no later than 10 days after receipt of a Demand Registration Request, the Company shall give written notice (the "Demand Exercise Notice") of such Demand Notice Registration Request to be so registered all other Holders of record of Registrable Securities.
(a “Demand Registration”); providedb) The Company, howeversubject to Sections 2.3 and 2.6, that shall include in a Demand Notice may only be made if Registration (x) the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate Initiating Holder and (y) the Registrable Securities of any other Holder which shall have made a written request to the Company for inclusion in such registration (which request shall specify the maximum number of Registrable Securities then held intended to be disposed of by all Holders or (iisuch Holder) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify within 20 days after the expected method or methods of disposition receipt of the applicable Registrable Securities. Following receipt of a Demand Exercise Notice, the .
(c) The Company shall fileshall, as promptly expeditiously as reasonably practicablepossible, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause (x) effect such Registration Statement to be declared effective registration under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering including, without the written consent limitation, by means of the Holders’ Representative, except Registrable Securities requested to be included therein a shelf registration pursuant to Section 2.1(a). Subject Rule 415 under the Securities Act if so requested and if the Company is then eligible to the preceding sentence, if any use such a registration) of the Registrable Securities registered pursuant which the Company has been so requested to a Demand Registration are to be sold register, for distribution in a firm commitment underwritten offeringaccordance with such intended method of distribution, and the managing underwriter(s(y) of such underwritten offering advise the Holders in writing that it if requested by Medarex, if Medarex is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold participating in such offeringregistration, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was if requested by the HoldersInitiating Holder, pro rata (if applicable)Medarex is not participating in such registration, based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations obtain acceleration of the Company, and in no event shall effective date of the Company be required registration statement relating to effect more than one Demand Registration in any six month periodsuch registration.
(d) In The Demand Registration rights granted in Section 2.1(a) to the event Holders are subject to the following limitations: (i) with respect to any registration in respect of a Demand RegistrationRegistration Request initiated by a transferee of Medarex, such registration statement must include shares of Common Stock representing in excess of 20% of the Registrable Securities then outstanding; (ii) the Company shall use its reasonable best efforts not be required to maintain the continuous effectiveness of the applicable Registration Statement for cause a registration pursuant to Section 2.1(a) to be declared effective within a period of at least one year 180 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation any registration statement of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once effected in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, connection with a Demand Registration Statement Request; and (iii) if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registrationin its good faith judgment, offering determines that any registration of Registrable Securities should not be made or use continued because it would reasonably be expected to materially adversely affect or (A) materially interfere with any bona fide and imminent material financing of financing, acquisition, corporate reorganization or merger or other transaction involving the Company or any imminent of its subsidiaries; or (B) require under applicable law disclosure of material transaction under consideration by non-public information and such disclosure at that time would be materially detrimental to the Company or would require the disclosure of information that has not been(each, and is not otherwise required to be, disclosed to the publica "Valid Business Reason"), the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement may postpone filing a registration statement relating to a Demand Registration Request, cause such registration statement to be abandoned withdrawn and its effectiveness terminated or withdrawnmay postpone amending or supplementing such registration statement until such valid Business Reason no longer exists, but in which no event for more than three months (such period of postponement or withdrawal, the "Postponement Period"); and the Company shall promptly abandon give written notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such Registration Statementpostponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof; provided, however, the Company shall not be permitted to postpone or withdraw a registration statement after the expiration of any Postponement Period until six months after the expiration of such Postponement Period without the prior written approval of Medarex.
(ge) No request for If the Company shall give any notice of postponement or withdrawal of any registration will count for statement, the purposes Company shall not, during the period of postponement or withdrawal, register any Common Stock, other than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in effect). Each Holder of Registrable Securities agrees that, upon receipt of any notice from the limitations in Section 2.1(c) if: (A) Company that the Holders’ Representative determines in good faith Company has determined to withdraw the proposed any registration prior statement pursuant to the effectiveness clause (d)(iii) above, such Holder will discontinue its disposition of the Registration Statement relating Registrable Securities pursuant to such request due to marketing conditions or regulatory reasons relating to registration statement and, if so directed by the Company, will deliver to the Company (Bat the Company's expense) the Registration Statement relating to all copies, other than permanent file copies, then in such request is not declared effective within 60 days Holder's possession of the date prospectus covering such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included that was in effect at the applicable time of receipt of such notice. If the Company shall have withdrawn or prematurely terminated a registration relating statement filed under Section 2.1(a) (whether pursuant to such request, such registration is adversely affected by Section 2.1(d)(iii) or as a result of any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement (Dincluding, without limitation, for purposes of Section 2.1(c) more than 10% of above) until the Company shall have filed a new registration statement covering the Registrable Securities requested covered by the Holders to be included in withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the registration are not so included pursuant to Section 2.1(b), Company shall give any notice of withdrawal or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result postponement of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contraryregistration statement, the Company will pay all expenses shall, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless no event later than three months after the date of whether the postponement or not such request counts toward the limitation set forth above.
(h) In addition to the foregoingwithdrawal), the Company will use its reasonable best efforts to remain qualified effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the Initiating Holder shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for registration on Form S-3 (the purposes of this Agreement, including, without limitation, if availablefor purposes of Section 2.1(c) above).
(f) The Company, an automatic shelf subject to Sections 2.3 and 2.6, may elect to include in any registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Actand offering made pursuant to Section 2.1(a), (i) authorized but unissued shares of Common Stock or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and shares of Common Stock held by the Company shall file, as promptly as reasonably practicable treasury shares and (ii) any other shares of Common Stock which are requested to be included in such registration pursuant to the exercise of piggyback rights granted by the Company after the execution and delivery of this Agreementdate hereof which are not inconsistent with the rights granted in, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for or otherwise conflict with the registration terms of, and the sale on a continuous or delayed basis this Agreement (notwithstanding anything "Additional Piggyback Rights"); provided, however, that such inclusion shall be permitted only to the contrary in Section 2.1(d)) of, the Registrable Securities, extent that it is pursuant to Rule 415 under and subject to the Securities Act, to permit the distribution terms of the Registrable Securities in accordance with the methods of distribution elected underwriting agreement or arrangements, if any, entered into by the Holders, including by means of Initiating Holder.
(g) In connection with any Demand Registration that is an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts have the right to keep designate the lead managing underwriter, and subject to the next sentence, each other managing underwriter for such Short-Form Registration effective with registration; provided that, if Medarex is participating in the SEC at all times Demand Registration, each such other managing underwriter is reasonably satisfactory to Medarex, it being understood and agreed that any Short-Form Registration managing underwriter that participates as a managing underwriter in the IPO shall be re-filed upon its expirationsatisfactory to Medarex. If Medarex is participating in the Demand Registration, and Medarex shall have the Company shall cooperate right to designate one managing underwriter other than the lead managing underwriter in any shelf take-down such registration, provided that such managing underwriter selected by amending or supplementing the Prospectus related to such Short-Form Registration as may be Medarex is reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything satisfactory to the contrary Company, it being understood and agreed that any managing underwriter that participates as a managing underwriter in Section 2.1(d))the IPO shall be satisfactory to the Company.
Appears in 1 contract
Sources: Registration Rights Agreement (Celldex Therapeutics Inc)
Demand Registrations. (a) At any time and from time to timetime after the earlier of September 1, 1998 or the effectuation of an Initial Public Offering by the Company, holders of a majority of the shares of Stock held by the Jordan Investors (other than MCIT) and the FNBB Affiliate may request in writing that the Company effect the registration under the Securities Act of all or part of such holders' Registrable Securities, specifying in the request the number and type of Registrable Securities to be registered by each such holder and the intended method of disposition thereof (such notice is hereinafter referred to as a "Holder Request"). Upon receipt of such Holder Request, the Holders’ Representative Company will promptly give written notice of such requested registration to all other holders of Registrable Securities, which other holders shall have the right to include the Registrable Securities held by delivering one or more them in such registration and thereupon the Company will, as expeditiously as possible, use its best efforts to effect the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by such requesting Stockholders; and
(ii) all other Registrable Securities which the Company has been requested to register by any other holder thereof by written notices request given to the Company (each, a “Demand Notice”) to require within 30 calendar days after the giving of such written notice by the Company to(which request shall specify the intended method of disposition of such Registrable Securities), pursuant all to the terms of this Agreement, register under and extent necessary to permit the disposition (in accordance with the provisions intended methods thereof as aforesaid) of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice so to be so registered (a “Demand Registration”)registered; provided, however, that the Company shall not be obligated to file a Demand Notice may only be made if registration statement relating to any Holder Request under this Section 6.1(a):
(x) unless the amount of Registrable Securities requested Company shall have received requests for such registration with respect to be registered is either (i) at least 2015% of the aggregate number shares of Registrable Securities Common Stock then held by outstanding (including all Holders or (iiWarrant Stock) reasonably expected with respect to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts the first Holder Request, and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, unless the Company shall file, as promptly as reasonably practicable, but not later than, 60 days have received requests for such registration with respect to any underwritten offering, or 30 days 10% of the shares of Common Stock then outstanding with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of each Holder Request under this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.6 thereafter;
(by) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representativeother than a registration statement on Form S-3 or a similar short form registration statement, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for within a period of at least one year 12 months after the effective date thereof of any other registration statement relating to any registration request under this Section 6.1(a) that was not effected on Form S-3 (or such shorter any similar short form); or
(z) within a nine-month period in which all Registrable Securities included in such Registration Statement have actually been sold. For immediately following the avoidance effective date of doubt, the foregoing sentence is not intended to limit the obligation of a registration previously effected by the Company pursuant to maintain this Section 6.1; provided, further, however, that the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to may postpone (but for not more than once in any six-month period)90 calendar days, on one occasion only with respect to each request for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month periodregistration made under this Section 6.1(a), the filing or initial effectiveness of, or suspend the use of, of a Demand Registration Statement registration statement under this Section 6.1(a) if the Company delivers to the Holders’ Representative and a certificate signed by both the Chief Executive Officer and Chief Financial Officer majority of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, Jordan Investors agree that such registration, offering or use would registration might reasonably be expected to materially adversely affect have an adverse effect on any proposal or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration plan by the Company to engage in any acquisition of assets (other than in the ordinary course of business) or would require any merger, consolidation, tender offer or similar transaction; provided, that in such event, the disclosure holders of information that has not beenRegistrable Securities initiating the request for such registration will be entitled to withdraw such request, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to if such request is withdrawn such registration will not declared effective within 60 days count as one of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by permitted registrations under this Section 6.1. In any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contraryevent, the Company will pay all expenses (in accordance with Section 2.8) Registration Expenses in connection with any request for registration pursuant to initiated under this Agreement regardless of whether or not such request counts toward the limitation set forth aboveSection 6.1.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Demand Registrations. (a) At Subject to the terms and conditions hereof, (x) solely during any time and from time period that the Company is then ineligible under Applicable Law to timeregister Registrable Securities on Form S-3, or if the Holders’ Representative Company is so eligible but has failed to comply with its obligations under Section 4.3 or (y) following the expiration of the Company’s obligation to keep the Shelf Registration Statement continuously effective pursuant to Section 4.3(c), but only if there is no Shelf Registration Statement then in effect, any Demand Shareholders (“Requesting Shareholders”) shall have the right by delivering one or more be entitled to make an unlimited number of written notices to requests of the Company (each, a “Demand NoticeDemand”) to require for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders that equals or is greater than the Registrable Amount (a “Demand Registration” and such registration statement, a “Demand Registration Statement”). Thereupon, the Company toshall, pursuant subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable (including reasonable best efforts to effect the registration no less than 30 days after receipt of the Demand) under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register under and by the Requesting Shareholders for disposition in accordance with the provisions intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which the Securities Act Company has been requested to register pursuant to Section 4.1(b), but subject to Section 4.1(g); and
(iii) all shares of Company Common Stock which the number Company may elect to register in connection with any offering of Registrable Securities owned by Holders pursuant to this Section 4.1, but subject to Section 4.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and requested by such Demand Notice the additional shares of Company Common Stock, if any, to be so registered registered.
(a “b) A Demand Registration”); provided, however, that a Demand Notice may only be made if shall specify: (i) the amount aggregate number of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or in such Demand Registration, (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected intended method or methods of disposition in connection with such Demand Registration, to the extent then known, and (iii) the identity of the applicable Registrable SecuritiesRequesting Shareholder(s). Following Within five (5) days after receipt of a Demand NoticeDemand, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days give written notice of such Demand to all other holders of Registrable Securities. The Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by which the Company of such Demand Notice has received a written request for inclusion therein within five (5) days after the Company’s notice required by this paragraph has been given, subject to paragraph (e) Section 4.1(g). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2.14.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one A Demand Registration in any six month period.
shall not be deemed to have been effected (di) In unless the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement with respect thereto has become effective and has remained effective for a period of at least one year after the effective date thereof hundred twenty (120) days or such shorter period in which all Registrable Securities included in such Demand Registration Statement have actually been sold. For sold or otherwise disposed of thereunder (provided, that such period shall be extended for a period of time equal to the avoidance period the holders of doubt, Registrable Securities refrain from selling any securities included in such registration statement at the foregoing sentence is not intended to limit the obligation request of the Company or the lead managing underwriter(s) pursuant to maintain the continuous effectiveness provisions of this Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to one hundred twenty (120) days after effectiveness, to any stop order, injunction or other order or requirement of the Short-Form Registration contemplated Commission or other Governmental Authority, other than by Section 2.1(hreason of any act or omission by the applicable Selling Shareholders.
(d) Demand Registrations shall be on such appropriate registration form of the Commission as required shall be selected by Section 2.1(h)the Company and reasonably acceptable to the Requesting Shareholders.
(e) The Company shall not be obligated to (i) subject to Section 4.1(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration for a period longer than one hundred eighty (180) days or (ii) effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Demand Shareholders were offered “piggyback” rights pursuant to Section 4.2 (subject to Section 4.2(b)) and at least fifty percent (50%) of the number of Registrable Securities requested by such Demand Shareholders to be included in such Demand Registration were included, (B) within ninety (90) days of the completion of any other Demand Registration (including, for the avoidance of doubt, any Underwritten Offering pursuant to any Shelf Registration Statement) or (C) if, in the Company’s reasonable judgment, it is not feasible for the Company to proceed with the Demand Registration because of the unavailability of audited or other required financial statements of the Company or any other Person; provided, that the Company shall use its reasonable best efforts to obtain such financial statements as promptly as practicable.
(f) The Company shall be entitled to (i) postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in upon written notice to the aggregate, 90 days during any twelve-month period), Demand Shareholders) the filing or initial the effectiveness ofof a registration statement for any Demand Registration, or (ii) cause any Demand Registration Statement to be withdrawn and its effectiveness terminated and (iii) suspend the use ofof the prospectus forming the part of any registration statement, in each case in the event of a Demand Registration Statement if Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period under clause (ii) of the definition thereof, the Company delivers shall deliver to the Holders’ Representative Demand Shareholders requesting registration a certificate signed by both either the Chief Executive Officer and Chief Financial Officer chief executive officer or the chief financial officer of the Company certifying that, in the good faith judgment of the Board Company, the conditions described in clause (ii) of Directors the definition of Blackout Period are met. Such certificate shall contain an approximation of the anticipated delay. Upon notice by the Company to the Demand Shareholders of any such determination, each Demand Shareholder covenants that, subject to Applicable Law, it shall keep the fact of any such notice strictly confidential, and, in the case of a Blackout Period pursuant to clause (ii)(y) of the definition of Blackout Period, promptly halt any offer, sale, trading or other Transfer by it or any of its Affiliates of any Registrable Securities for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration Statement, each prospectus included therein, and any amendment or supplement thereto by it and any of its Affiliates for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and, if so directed in writing by the Company, will deliver to the Company any copies then in the Demand Shareholder’s possession of the prospectus covering such registrationRegistrable Securities that was in effect at the time of receipt of such notice.
(g) If, offering or use in connection with a Demand Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its (their) good faith opinion, the inclusion of all of the securities sought to be registered in connection with such Demand Registration would reasonably be expected to materially adversely affect or materially interfere with any bona fide the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and imminent material financing in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Demand Shareholders, which, in the good faith opinion of the lead managing underwriter(s), can be sold without adversely affecting the success thereof, pro rata among such Demand Shareholders on the basis of the number of such Registrable Securities requested to be included by such Demand Shareholders; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or any imminent material transaction under consideration such other allocation method determined by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(fh) The Holders’ Representative shall have the right to notify the Company Any time that it has determined that the Registration Statement relating to a Demand Registration involves an Underwritten Offering, the Requesting Shareholder(s) shall select the investment banker(s) and manager(s) that will serve as managing underwriters (including which such managing underwriters will serve as lead or co-lead) and underwriters with respect to the offering of such Registrable Securities; provided, that such investment banker(s) and manager(s) shall be abandoned or withdrawn, in which event reasonably acceptable to the Company shall promptly abandon or withdraw (such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is acceptance not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b)unreasonably withheld, conditioned or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)delayed).
Appears in 1 contract
Sources: Shareholder Agreement (Atlas Air Worldwide Holdings Inc)
Demand Registrations. (ai) At any time and from time to timeafter the expiration of the Lockup Period, the Holders’ Representative shall have Designated Holders holding a majority of the right by delivering one then Registrable Securities may request registration under the Securities Act of all or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms any portion of this Agreement, register under and their Registrable Securities in accordance with the provisions of the Securities Act this Section 6(b). All registrations requested pursuant to this Section 6(b) are referred to herein as "Demand Registrations." Each request for a Demand Registration shall specify the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 millionregistered. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following Within ten days after receipt of a Demand Noticeany such request, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company give written notice of such Demand Notice (subject requested registration to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by all other holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and shall include in such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of registration all Registrable Securities and Other Securities shall be allocated with respect to which the Company has received written requests for inclusion as follows:
therein within fifteen (i15) first, days after the Registrable Securities for which inclusion in such demand offering was requested by receipt of the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; andCompany's notice.
(ii) second, among any holders The Designated Holders of Other Securities, pro rata, based on the number of Other Registrable Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations in accordance with this Section 6(b). The aggregate offering value of the CompanyRegistrable Securities requested to be registered in any Demand Registration must, in the good faith judgment of the holders thereof, equal at least $5,000,000. A registration shall not count as one of the permitted Demand Registrations until it has become effective (unless the holders of a majority of the Registrable Securities included in such registration have agreed to abandon such registration after a registration statement has been filed with the Commission).
(iii) If a Demand Registration is an underwritten offering and in no event shall the managing underwriters advise the Company in writing that in their opinion the number of Registrable Securities and other securities requested to be required included in such offering exceeds the number of Registrable Securities and other securities, if any, which can be sold in an orderly manner in such offering within a price range acceptable to the holders of a majority of the Registrable Securities included in such registration, the Company shall include in such registration prior to the inclusion of any securities which are not Registrable Securities the number of Registrable Securities requested to be included which in the opinion of such underwriters can be sold in an orderly manner within the price range of such offering, pro rata among the respective holders thereof on the basis of the amount of securities requested to be included therein by each such holder.
(iv) The Company shall not be obligated to effect more than one Demand Registration in any six twelve-month period.
(d) In the event of a Demand Registration, and the Company shall use its reasonable best efforts not be obligated to maintain the continuous effectiveness of the applicable effect any Demand Registration Statement for a period of at least one year within 60 days after the effective date thereof or such shorter period in which all Registrable of a previous offering of Common Stock registered under the Securities included in such Registration Statement have actually been soldAct. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled may postpone for up to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 180 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial the effectiveness of, or suspend the use of, of a registration statement for a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer Company's board of the Company certifying that, directors determines in the its reasonable good faith judgment of the Board of Directors of the Company, that such registration, offering or use Demand Registration would reasonably be expected to materially adversely affect have a material adverse effect on any proposal or materially interfere with any bona fide and imminent material financing of plan by the Company or any imminent material transaction under consideration by of its subsidiaries to engage in any acquisition (other than in the ordinary course of business) or any merger, consolidation, tender offer, reorganization or similar transaction; PROVIDED THAT (a) the Company or would require may exercise its right to delay a Demand Registration only once in any twelve-month period and (b) if a Demand Registration is delayed hereunder, the disclosure holders of information that has Registrable Securities initially requesting such Demand Registration shall be entitled to withdraw such request and, if such request is withdrawn, such Demand Registration shall not been, count as one of the permitted Demand Registrations hereunder and is not otherwise required to be, disclosed the Company shall pay all Registration Expenses in connection with such registration. Notwithstanding anything to the publiccontrary in this Section 6(b)(iv), (x) the premature disclosure of which would materially adversely affect Company may not prevent, delay or postpone any Demand Registration and (y) the CompanySecurityholders shall not be subject to any lockup or similar agreements following any Demand Registration for more than 270 days during any 360-day period.
(fv) The Holders’ Representative Designated Holders shall have the right to notify select the investment banker(s) and manager(s) to administer the offering, subject to the approval of the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statementits sole discretion.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Demand Registrations. (ai) At Subject to Sections 2.1(b) and 2.3, at any time and from time to time, the Holders’ Representative an Investor Shareholder shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company toto file one or more, pursuant to the terms of this Agreementbut in no event greater than five, register registration statements under and in accordance with the provisions of the Securities Act covering all or any part of its and its Affiliates’ Registrable Securities by delivering a written request therefor to the Company specifying the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered included in such registration and the intended method of distribution therefor (a “Demand RegistrationRegistration Request”); provided. The registration so requested is referred to herein as a “Demand Registration” (with respect to any Demand Registration, howeverthe Investor Shareholder(s) making such demand for registration being referred to as the “Initiating Holders”). Any Demand Registration Request may request that the Company register Registrable Securities on an appropriate form, that including a shelf registration statement, and, if the Company is a WKSI, an Automatic Shelf Registration Statement.
(ii) The Company shall give written notice (the “Demand Exercise Notice”) of such Demand Registration Request (A) to each of the Investor Shareholders no later than three (3) Business Days after receipt of a Demand Notice may only be made if the amount Registration Request and (B) to all other Holders of record of Registrable Securities requested no later than five (5) Business Days after the filing of a registration statement pursuant to be registered is either the Demand Registration Request (ior, in the case of a request for the filing of an Automatic Shelf Registration Statement, three (3) at least 20% Business Days after receipt of the aggregate Demand Registration Request).
(b) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities which shall have made a written request to the Company for inclusion in such registration pursuant to Section 2.2 (which request shall specify the maximum number of Registrable Securities then held intended to be disposed of by all Holders or (ii) reasonably expected such Participating Holder on the same terms and pursuant to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected same intended method or methods of disposition as are set forth in the Demand Registration Request of the applicable Registrable Securities. Following Initiating Holder) within ten (10) days after the receipt of a the Demand Exercise Notice.
(c) The Company shall, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.12.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to (x) as soon as reasonably practicable, but in no event later than sixty (60) days following receipt of a Demand Registration Request, file with the SEC the form and other necessary documents, and, as soon as reasonably practicable after such filing, use its best efforts to cause such Registration Statement to be declared effective such registration under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering including, without the written consent limitation, by means of the Holders’ Representative, except Registrable Securities requested to be included therein a shelf registration pursuant to Section 2.1(a). Subject Rule 415 under the Securities Act if so requested and if the Company is then eligible to the preceding sentence, if any use such a registration) of the Registrable Securities registered pursuant which the Company has been so requested to register, for distribution in accordance with such intended method of distribution, including a distribution to, and resale by, the members or partners of a Holder (a “Partner Distribution”) and (y) if requested by the Initiating Holders, request acceleration of the effective date of the registration statement relating to such registration.
(d) Notwithstanding anything contained herein to the contrary, the Company shall, at the request of any Holder seeking to effect or considering a Partner Distribution, file any Offering Document and otherwise take any action, deemed necessary or advisable by such Holder to effect such Partner Distribution.
(e) Any Initiating Holder and any other Holder that has requested its Registrable Securities be included in a Demand Registration are to be sold in may withdraw all or a firm commitment underwritten offering, and the managing underwriter(s) portion of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of its Registrable Securities proposed from such Demand Registration at any time prior to be sold in the effectiveness of the Demand Registration. Upon receipt of a notice to such offering, together effect (A) from the Initiating Holder and all other Holders with any Other Securities proposed respect to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution all of the Registrable Securities to be so included together with all by such Other Securities, then there shall be included Holders in such offering the number Demand Registration; or dollar amount of (B) from one or more Holders with respect to Registrable Securities and such Other Securities held by them that would cause the reasonably expected aggregate offering price to fall to $50,000,000 or below, the Company shall cease all effort to secure effectiveness of the applicable Demand Registration.
(f) Notwithstanding anything to the contrary in Section 2.1(a), the opinion of such managing underwriter(sDemand Registration rights granted in Section 2.1(a) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
are subject to the following limitations: (i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(iix) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company shall not be required to effect more than one (1) Demand Registration delivered by any specific Investor Shareholder pursuant to Section 2.1(a)(i) in any six seven and one-half month period.
period (dit being understood that a registration pursuant to a Piggyback Request by an Investor Shareholder shall not constitute a Demand Registration for the purposes of this Section 2.1(f)(i)); (ii) In the event each registration in respect of a Demand RegistrationRegistration Request made by any Initiating Holder must include, in the aggregate (based on the Common Stock included in such registration by all Holders participating in such registration), Registrable Securities having an aggregate market value reasonably expected to be at least $50,000,000; and (iii) if the Board, in its good faith judgment, determines that any registration of Registrable Securities should not be made or continued because it would materially interfere with any material financing, acquisition, corporate reorganization, merger, share exchange or other transaction or event involving the Company or any Subsidiary and, in each case, any successor thereto, or because the Company does not yet have appropriate financial statements of acquired or to be acquired entities available for filing (in each case, a “Valid Business Reason”), then (x) the Company may postpone filing a registration statement relating to a Demand Registration Request until three (3) Business Days after such Valid Business Reason no longer exists, but in no event for more than 30 days after the date the Board determines a Valid Business Reason exists and (y) in case a registration statement has been filed relating to a Demand Registration Request, if the Valid Business Reason has not resulted from actions taken by the Company, any Subsidiary, and, in each case, any successor thereto, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubtmay, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, extent determined in the good faith judgment of the Board to be reasonably necessary to avoid interference with any of Directors the transactions described above, cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until three (3) Business Days after such Valid Business Reason no longer exists, but in no event for more than 30 days after the date the Board determines a Valid Business Reason exists (such period of postponement or withdrawal under this clause (iv), the “Postponement Period”). The Company shall give written notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, together with a certificate of such determination signed by the Chief Executive Officer or Chief Financial Officer of the Company, such registrationin each case, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of promptly after the occurrence thereof; provided, however, the Company shall not be permitted to postpone or withdraw a registration statement after the expiration of any imminent material transaction under consideration by Postponement Period until twelve (12) months after the expiration of such Postponement Period. If the Company shall give any notice of postponement or would require the disclosure withdrawal of information that has not been, and is not otherwise required any registration statement pursuant to be, disclosed to the publicclause ‘(f)’ above, the premature disclosure Company shall not, during the Postponement Period, register any Common Stock, other than pursuant to a Special Registration Statement. Each Holder of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify Registrable Securities agrees that, upon receipt of any notice from the Company that it the Company has determined that the Registration Statement relating to a Demand Registration be abandoned withdraw, terminate or withdrawnpostpone amending or supplementing any registration statement pursuant to clause ‘(f)’ above, in which event such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Company shall promptly abandon have withdrawn or withdraw such Registration Statement.
prematurely terminated a registration statement filed under Section 2.1(a)(i) (gwhether pursuant to clause (iii) No request for registration will count for the purposes above or as a result of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), (D) more than 10% the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities requested covered by the Holders to be included in withdrawn or terminated registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the registration are not so included pursuant to Section 2.1(b), Company shall give any notice of withdrawal or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result postponement of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contraryregistration statement, the Company will pay all expenses shall, not later than three (3) Business Days after the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless no event later than 30 days after the date of whether the postponement or not such request counts toward the limitation set forth above.
(h) In addition to the foregoingwithdrawal), the Company will use its reasonable best efforts to remain qualified for effect the registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) Act of the Registrable Securities covered by the withdrawn or any comparable or successor form or forms or any similar short-form postponed registration statement in accordance with this Section 2.1 (“Short-Form Registration”) and unless the Initiating Holders shall have withdrawn such request, in which case the Company shall filenot be considered to have effected an effective registration for the purposes of this Agreement), as promptly as reasonably practicable after and such registration shall not thereafter be withdrawn or postponed pursuant to Section 2.1(f).
(g) In connection with any Demand Registration, the execution and delivery Majority Participating Holders shall have the right to designate the lead managing underwriter (any lead managing underwriter for the purposes of this Agreement, but not later than 30 daysthe “Manager”) in connection with any underwritten offering pursuant to such registration and each other managing underwriter for any such underwritten offering; provided, that in the event that an Investor Shareholder is the Majority Participating Holder, and any other Investor Shareholder is a Participating Holder, then such managing underwriter must be reasonably satisfactory to such other Investor Shareholder; provided, further, that, in any case, such Short-Form Registrationunderwriter is reasonably satisfactory to the Company, which approval shall constitute not be unreasonably withheld or delayed.
(h) The obligation to effect a “shelf” Demand Registration as described in this Section 2.1 shall be deemed satisfied only when a registration statement providing for covering the applicable Registrable Securities shall have become effective (unless, after effectiveness, the registration ofstatement becomes subject to any stop order, and injunction or other order of the sale on SEC or other governmental agency, in which case the obligation shall not be deemed satisfied) and, if the method of disposition is a continuous or delayed basis firm commitment underwritten public offering, all such Registrable Securities have been sold pursuant thereto.
(notwithstanding i) Notwithstanding anything to the contrary in Section 2.1(d)) ofherein, at such time as the Registrable Securities, pursuant to Rule 415 Company shall have qualified for the use of Form S-3 promulgated under the Securities Act, to permit Act or any successor form thereto and in the distribution event that the Company files a shelf registration statement under Rule 415 of the Securities Act pursuant to a Demand Registration Request and such shelf registration statement on Form S-3 becomes effective (such registration statement, a “Shelf Registration Statement”), the Initiating Holders with respect to such Demand Registration Request and the Holders of other Registrable Securities registered on such Shelf Registration Statement shall have the right at any time or from time to time to elect to sell pursuant to an underwritten offering Registrable Securities available for sale pursuant to such registration statement (“Shelf Registrable Securities”), so long as the Shelf Registration Statement remains in accordance with effect and only if the methods method of distribution elected by set forth in the Holders, including by means of shelf registration allows for sales pursuant to an underwritten offering.
(j) The Initiating Holders and such other Holders shall make such election by delivering to the Company a written request (a “Shelf Underwriting Request”) for such underwritten offering to the Company specifying the number of Shelf Registrable Securities that the Holders desire to sell pursuant to such underwritten offering (the “Shelf Underwriting”). Upon filing As promptly as practicable, but no later than five (5) Business Days after receipt of a Short-Form RegistrationShelf Underwriting Request, the Company shall give written notice (the “Shelf Underwriting Notice”) of such Shelf Underwriting Request to all other Holders of record of Shelf Registrable Securities. The Company, subject to Sections 2.3 and 2.6, shall include in such Shelf Underwriting (x) the Registrable Securities of the Initiating Holders and (y) the Shelf Registrable Securities of any other Holder of Shelf Registrable Securities which shall have made a written request to the Company for inclusion in such Shelf Underwriting (which request shall specify the maximum number of Shelf Registrable Securities intended to be disposed of by such Holder) within seven (7) days after the receipt of the Shelf Underwriting Notice. The Company shall, as expeditiously as possible (and in any event within twenty (20) days after the receipt of a Shelf Underwriting Request), but subject to Section 2.1(b), use its reasonable best efforts to keep facilitate such ShortShelf Underwriting. Notwithstanding the foregoing, if an Investor Shareholder wishes to engage in a Block Trade off of a Shelf Registration Statement (either through filing an Automatic Shelf Registration Statement or through a take-Form down from an already existing Shelf Registration effective with Statement), then notwithstanding the SEC at all times foregoing time periods, the Investor Shareholder only needs to notify the Company of the Block Trade on the day such offering is to commence and any Short-Form Registration the Company shall be re-filed upon its expirationnotify the other Investor Shareholders that did not initiate the Block Trade. The Investor Shareholders must elect whether or not to participate in such Block Trade on the day such offering is to commence, and the Company shall cooperate as expeditiously as possible use its reasonable best efforts (including co-operating with such Investor Shareholders with respect to the provision of necessary information) to facilitate such shelf offering (which may close as early as three (3) Business Days after the date it commences), provided, that in any shelf take-down by amending or supplementing the Prospectus case of such Block Trade, only Investor Shareholders shall have a right to notice and to participate, and provided, further, that the Investor Shareholder requesting such Block Trade shall use commercially reasonable efforts to work with the Company and the underwriters prior to making such request in order to facilitate preparation of Offering Documents related to the Block Trade. For the avoidance of doubt, the Holders other than the Investor Shareholders shall not be entitled to receive notice of, or to elect to participate in, a Block Trade or any Shelf Registration Statement or prospectus to be used in connection with such ShortBlock Trade. The Company shall, at the request of any Initiating Holder or any other Holder of Registrable Securities registered on such Shelf Registration Statement, file any prospectus supplement or, if the applicable Shelf Registration Statement is an Automatic Shelf Registration Statement (as defined in Section 2.4), any post-Form Registration as may be reasonably requested effective amendments and otherwise take any action necessary to include therein all disclosure and language deemed necessary or advisable by the Holders’ Representative or as otherwise requiredCompany to effect such Shelf Underwriting. Once a Shelf Registration Statement has been declared effective, until the Holders no longer hold Registrable Securities (in each caseInvestor Shareholders may request, notwithstanding and the Company shall be required to facilitate, an unlimited number of Shelf Underwritings with respect to such Shelf Registration Statement. Notwithstanding anything to the contrary in this Section 2.1(d2.1(j), each Shelf Underwriting must include, in the aggregate (based on the Common Stock included in such Shelf Underwriting by all Holders participating in such Shelf Underwriting)., shares of Common Stock having an aggregate market value of at least $50,000,000. The Company agrees to use c
Appears in 1 contract
Sources: Registration Rights Agreement (Dun & Bradstreet Holdings, Inc.)
Demand Registrations. (ai) At Subject to Sections 2.1(b) and 2.3, at any time and from time to time, following at least one (1) year after the Holders’ Representative effectiveness of the registration statement on Form S-4 of Splitco relating to the Split-Off and for so long as a Holder owns Registrable Securities, such Holder shall have the right by delivering to require Splitco to file one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register registration statements under and in accordance with the provisions of the Securities Act covering all or any part of its and its Affiliates’ Registrable Securities by delivering a written request therefor to Splitco specifying the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered included in such registration and the intended method of distribution therefor (a “Demand RegistrationRegistration Request”); provided. The registration so requested is referred to herein as a “Demand Registration” (with respect to any Demand Registration, however, that a the Holder(s) making such demand for registration being referred to as the “Initiating Holder(s)”).
(ii) Splitco shall give written notice (the “Demand Notice may only be made if Exercise Notice”) of such Demand Registration Request to the amount Holders of record of Registrable Securities requested (other than the Initiating Holder(s), as applicable) no later than five (5) Business Days after the filing of a registration statement pursuant to be registered is either the Demand Registration Request (ior, in the case of a request for the filing of an automatic shelf registration statement, five (5) at least 20% Business Days after receipt of the aggregate Demand Registration Request).
(b) Splitco, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities which shall have made a written request to Splitco for inclusion in such registration pursuant to Section 2.2 (which request shall specify the maximum number of Registrable Securities then held intended to be disposed of by all Holders or (ii) reasonably expected such Participating Holder on the same terms and pursuant to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected same intended method or methods of disposition as are set forth in the Demand Registration Request of the applicable Registrable Securities. Following Initiating Holder) within ten (10) days after the receipt of a the Demand Exercise Notice.
(c) Splitco shall, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.12.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to (x) as soon as reasonably practicable, but in no event later than sixty (60) days following receipt of a Demand Registration Request, file with the SEC the form and other necessary documents, and, as soon as reasonably practicable after such filing, use its best efforts to cause such Registration Statement to be declared effective such registration under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering including, without the written consent limitation, by means of the Holders’ Representative, except Registrable Securities requested to be included therein a shelf registration pursuant to Section 2.1(a). Subject Rule 415 under the Securities Act if so requested and if Splitco is then eligible to the preceding sentence, if any use such a registration) of the Registrable Securities registered pursuant which Splitco has been so requested to register, for distribution in accordance with such intended method of distribution, and (y) if requested by the Initiating Holders, request acceleration of the effective date of the registration statement relating to such registration.
(d) Any Initiating Holder and any other Holder that has requested its Registrable Securities be included in a Demand Registration are to be sold in may withdraw all or a firm commitment underwritten offering, and the managing underwriter(s) portion of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of its Registrable Securities proposed from such Demand Registration at any time prior to be sold in the effectiveness of the Demand Registration. Upon receipt of a notice to such offering, together effect (A) from the Initiating Holder and all other Holders with any Other Securities proposed respect to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution all of the Registrable Securities to be so included together with all by such Other Securities, then there shall be included Holders in such offering the number Demand Registration; or dollar amount of (B) from one or more Holders with respect to Registrable Securities held by them that would cause the anticipated aggregate offering price (after having subtracted all underwriting discounts and such Other Securities that commissions) to fall to $10 million or below, Splitco shall cease all effort to secure effectiveness of the applicable Demand Registration.
(e) Notwithstanding anything to the contrary in Section 2.1(a), the opinion of such managing underwriter(sDemand Registration rights granted in Section 2.1(a) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
are subject to the following limitations: (i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively Splitco shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company not be required to effect more than one (1) Demand Registration delivered by CTIC pursuant to Section 2.1(a)(i) in any six nine (9) month period.
period (dit being understood that a registration pursuant to a Piggyback Request (as defined below) In by CTIC shall not constitute a Demand Registration for the event purposes of this Section 2.1(f)(i)); (ii) each registration in respect of a Demand RegistrationRegistration Request made by any Holder must include, in the Company shall use its reasonable best efforts to maintain aggregate (based on the continuous effectiveness of the applicable Registration Statement for a period Splitco Common Stock included in such registration by all Holders and other Persons participating in such registration), Registrable Securities having an aggregate market value of at least one year after $10 million; and (iii) if the effective date thereof or such shorter period Board, in which all its good faith judgment, determines that any registration of Registrable Securities included should not be made or continued because it would materially interfere with any material financing, acquisition, corporate reorganization, merger, share exchange or other transaction or event involving Splitco or any Subsidiary and, in such Registration Statement each case, any successor thereto, or because Splitco does not yet have actually been sold. For the avoidance appropriate financial statements of doubtacquired or to be acquired entities available for filing (in each case, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month perioda “Valid Business Reason”), for then (x) Splitco may postpone filing a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, registration statement relating to a Demand Registration Statement Request until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than 120 days after the date the Board determines a Valid Business Reason exists and (y) in case a registration statement has been filed relating to a Demand Registration Request, if the Company delivers Valid Business Reason has not resulted from actions taken by Splitco, any Subsidiary, and, in each case, any successor thereto, Splitco may, to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, extent determined in the good faith judgment of the Board of Directors to be reasonably necessary to avoid interference with any of the Companytransactions described above, cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than 120 days after the date the Board determines a Valid Business Reason exists (such period of postponement or withdrawal under this clause (iii), the “Postponement Period”). Splitco shall give written notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, together with a certificate of such determination signed by the Chief Executive Officer or Chief Financial Officer of Splitco, in each case, promptly after the occurrence thereof; provided, however, that Splitco shall not be permitted to postpone or withdraw a registration statement after the expiration of any Postponement Period until twelve (12) months after the expiration of such Postponement Period. If Splitco shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (x) or (y) above, Splitco shall not, during the Postponement Period, register any Splitco Common Stock, other than pursuant to a Special Registration Statement. Each Holder of Registrable Securities agrees that, upon receipt of any notice from Splitco that Splitco has determined to withdraw, terminate or postpone amending or supplementing any registration statement pursuant to clause (x) or (y) above, such registration, offering or use would reasonably be expected Holder will discontinue its disposition of Registrable Securities pursuant to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative such registration statement. If Splitco shall have the right withdrawn or prematurely terminated a registration statement filed under Section 2.1(a)(i) (whether pursuant to notify the Company that it has determined that the Registration Statement relating to clause (iii) above or as a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes result of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), (D) more than 10% Splitco shall not be considered to have effected an effective registration for the purposes of this Agreement until Splitco shall have filed a new registration statement covering the Registrable Securities requested covered by the Holders to be included withdrawn or terminated registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If Splitco shall give any notice of withdrawal or postponement of a registration statement, Splitco shall, not later than five (5) Business Days after the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event later than 120 days after the registration are not so included pursuant to Section 2.1(bdate of the postponement or withdrawal), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for effect the registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities ActAct of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the Initiating Holders shall have withdrawn such request, in which case Splitco shall not be considered to have effected an effective registration for the purposes of this Agreement), and such registration shall not thereafter be withdrawn or postponed pursuant to clause (x) or (y) of this Section 2.1(e).
(f) In connection with any comparable or successor form or forms or Demand Registration, the Participating Holders shall have the right to designate the lead managing underwriter (any similar short-form registration (“Short-Form Registration”) and lead managing underwriter for the Company shall file, as promptly as reasonably practicable after the execution and delivery purposes of this Agreement, but not later than 30 daysthe “Manager”) in connection with any underwritten offering pursuant to such registration and each other managing underwriter for any such underwritten offering; provided, that, such Short-Form Registrationunderwriter is reasonably satisfactory to Splitco, which approval shall constitute not be unreasonably withheld or delayed.
(g) The obligation to effect a “shelf” Demand Registration as described in this Section 2.1 shall be deemed satisfied only when a registration statement providing for covering the applicable Registrable Securities shall have become effective (unless, after effectiveness, the registration ofstatement becomes subject to any stop order, and injunction or other order of the sale on SEC or other governmental agency, in which case the obligation shall not be deemed satisfied) and, if the method of disposition is a continuous or delayed basis firm commitment underwritten public offering, all such Registrable Securities have been sold pursuant thereto.
(notwithstanding h) Notwithstanding anything to the contrary in Section 2.1(d)) ofherein, at such time as Splitco shall have qualified for the Registrable Securities, pursuant to Rule 415 use of Form S-3 promulgated under the Securities ActAct or any successor form thereto and in the event that Splitco files a shelf registration statement under Rule 415 of the Securities Act pursuant to a Demand Registration Request and such shelf registration statement on Form S-3 becomes effective (such registration statement, a “Shelf Registration Statement”), the Initiating Holders with respect to permit such Demand Registration Request and the Holders of other Registrable Securities registered on such Shelf Registration Statement shall have the right at any time or from time to time to elect to sell pursuant to an underwritten offering Registrable Securities available for sale pursuant to such registration statement (“Shelf Registrable Securities”), so long as the Shelf Registration Statement remains in effect and only if the method of distribution set forth in the shelf registration allows for sales pursuant to an underwritten offering.
(i) The Initiating Holders and such other Holders shall make such election by delivering to Splitco a written request (a “Shelf Underwriting Request”) for such underwritten offering to Splitco specifying the number of Shelf Registrable Securities that the Holders desire to sell pursuant to such underwritten offering (the “Shelf Underwriting”). As promptly as practicable, but no later than five (5) Business Days after receipt of a Shelf Underwriting Request, Splitco shall give written notice (the “Shelf Underwriting Notice”) of such Shelf Underwriting Request to all other Holders of record of Shelf Registrable Securities. Splitco, subject to Sections 2.3 and 2.6, shall include in such Shelf Underwriting (x) the Registrable Securities of the Initiating Holders and (y) the Shelf Registrable Securities of any other Holder of Shelf Registrable Securities which shall have made a written request to Splitco for inclusion in accordance with such Shelf Underwriting (which request shall specify the methods maximum number of distribution elected Shelf Registrable Securities intended to be disposed of by such Holder) within seven (7) days after the Holdersreceipt of the Shelf Underwriting Notice. Splitco shall, including by means as expeditiously as possible (and in any event within twenty (20) days after the receipt of an underwritten offering. Upon filing a Short-Form RegistrationShelf Underwriting Request), the Company shall but subject to Section 2.1(b), use its reasonable best efforts to keep facilitate such Short-Form Shelf Underwriting. Notwithstanding the foregoing, if an Investor Shareholder wishes to engage in an underwritten block trade off of a Shelf Registration effective with Statement (either through filing an automatic shelf registration statement or through a take down of an already existing Shelf Registration Statement), then notwithstanding the SEC at all times foregoing time periods, the Investor Shareholder only needs to notify the Company of the block trade Shelf Underwriting on the day such offering is to commence and any Short-Form Registration the Company shall be re-filed upon its expirationnotify other Holders and other Holders must elect whether or not to participate on the day such offering is to commence, and the Company shall cooperate as expeditiously as possible use its reasonable best efforts (including co-operating with such Investor Shareholder with respect to the provision of necessary information) to facilitate such shelf offering (which may close as early as three (3) business days after the date it commences), provided, that in the case of such underwritten block trade, only Investor Shareholders shall have a right to notice and to participate, and provided, further, that the Investor Shareholder requesting such underwritten block trade shall use commercially reasonable efforts to work with the Company and the underwriters prior to making such request in order to facilitate preparation of Offering Documents relating to the underwritten block trade. Splitco shall, at the request of any Initiating Holder or any other Holder of Registrable Securities registered on such Shelf Registration Statement, file any prospectus supplement or, if the applicable Shelf Registration Statement is an automatic shelf takeregistration statement (as defined in Section 2.4), any post-down effective amendments and otherwise take any action necessary to include therein all disclosure and language deemed necessary or advisable by amending or supplementing Splitco to effect such Shelf Underwriting. Once a Shelf Registration Statement has been declared effective, the Prospectus related Holders of Registrable Securities may request, and Splitco shall be required to facilitate, an unlimited number of Shelf Underwritings with respect to such Short-Form Shelf Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding Statement. Notwithstanding anything to the contrary in this Section 2.1(d2.1(j), each Shelf Underwriting must include, in the aggregate (based on the Splitco Common Stock included in such Shelf Underwriting by all Holders and other Persons participating in such Shelf Underwriting), shares of Splitco Common Stock having an aggregate market value of at least $10 million. Splitco agrees to use commercially reasonable efforts to keep each Shelf Registration Statement continuously effective until the earliest to occur of (i) the date specified by the Shelf Requesting Holder, if any, (ii) the day after the date on which all Registrable Securities covered by such Shelf Registration Statement have been sold pursuant to such Shelf Registration Statement, and (iii) the first date on which there shall cease to be any Registrable Securities covered by such Shelf Registration Statement.
Appears in 1 contract
Sources: Registration Rights Agreement (Cannae Holdings, Inc.)
Demand Registrations. (a) At (i) Subject to Sections 2.1(b) and 2.3, at any time and from time to timetime after the closing of the IPO, the Holders’ Representative PVF shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file one or more registration statements under and in accordance with the provisions of the Securities Act covering all or any part of its Registrable Securities by delivering a written request therefor to the Company specifying the number of Registrable Securities owned by Holders and requested by such Demand Notice to be included in such registration and the intended method of distribution thereof. Any such request by PVF pursuant to this Section 2.1(a)(i) is referred to herein as a “Demand Registration Request,” and the registration so registered (requested is referred to herein as a “Demand Registration” (with respect to any Demand Registration, PVF shall be referred to herein as the “Initiating Holder”); provided. As promptly as practicable, however, that but no later than five (5) Business Days after receipt of a Demand Notice may only be made if Registration Request, the amount Company shall give written notice (the “Demand Exercise Notice”) of such Demand Registration Request to all other Holders of record of Registrable Securities, if any.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities requested to be registered is either (i) at least 20% of the aggregate Initiating Holder and (y) the Registrable Securities of any other Holder of Registrable Securities, if any, which shall have made a written request to the Company for inclusion in such registration pursuant to Section 2.2 (which request shall specify the maximum number of Registrable Securities then held intended to be disposed of by all Holders or such Participating Holder) within twenty (ii20) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify days after the expected method or methods of disposition receipt of the applicable Registrable Securities. Following receipt Demand Exercise Notice (or fifteen (15) days if, at the request of a Demand Noticethe Initiating Holder, the Company shall filestates in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form S-3).
(iii) The Company shall, as promptly expeditiously as reasonably practicablepossible, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.12.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause (x) effect such Registration Statement to be declared effective registration under the Securities Act as promptly as practicable after (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the filing thereofSecurities Act if so requested and if the Company is then eligible to use such a registration) of the Registrable Securities which the Company has been so requested to register, for distribution in accordance with such intended method of distribution, including a distribution to, and resale by, the members or partners of a Holder (a “Partner Distribution”) and (y) if requested by PVF, obtain acceleration of the effective date of the registration statement relating to such registration.
(iv) Notwithstanding anything contained herein to the contrary, the Company shall, at the request of any Holder seeking to effect a Partner Distribution, file any prospectus supplement or post-effective amendments and otherwise take any action necessary to include therein all disclosure and language deemed necessary or advisable by such Holder if such disclosure or language was not included in the initial registration statement, or revise such disclosure or language if deemed necessary or advisable by such Holder, to effect such Partner Distribution.
(b) No securities shall be included under any Notwithstanding anything to the contrary in Section 2.1(a), the Demand Registration Statement related rights granted in Section 2.1(a) are subject to an underwritten offering without the written consent of following limitations: (i) the Holders’ Representative, except Registrable Securities requested Company shall not be required to be included therein cause a registration pursuant to Section 2.1(a). Subject 2.1(a)(i) to be declared effective within a period of one hundred and eighty (180) days after the effective date of any other registration statement of the Company filed pursuant to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such HolderAct; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company shall not be required to effect more than one six (6) Demand Registration Registrations for PVF; and (iii) if the Board, in its good faith judgment, determines that any six month period.
(d) In the event registration of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is should not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing made or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use continued because it would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of financing, acquisition, corporate reorganization or merger or other transaction or event involving the Company or any imminent material transaction under consideration by of its subsidiaries (a “Valid Business Reason”), then (x) the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement may postpone filing a registration statement relating to a Demand Registration Request until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than three (3) months after the date the Board determines a Valid Business Reason exists and (y) in case a registration statement has been filed relating to a Demand Registration Request, if the Valid Business Reason has not resulted from actions taken by the Company, the Company may cause such registration statement to be abandoned withdrawn and its effectiveness terminated or withdrawnmay postpone amending or supplementing such registration statement until five (5) Business Days after such Valid Business Reason no longer exists, but in which no event for more than three (3) months after the date the Board determines a Valid Business Reason exists (such period of postponement or withdrawal under this clause (iii), the “Postponement Period”); and the Company shall promptly abandon give written notice of its determination to postpone or withdraw such Registration Statement.
(g) No request for a registration will count for the purposes statement and of the limitations fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in Section 2.1(ceach case, promptly after the occurrence thereof; provided, however, the Company shall not be permitted to postpone or withdraw a registration statement after the expiration of any Postponement Period until nine (9) if: months after the expiration of such Postponement Period. If the Company shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (Aiii) above, the Holders’ Representative determines Company shall not, during the period of postponement or withdrawal, register any Common Equity, other than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in good faith effect). Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw the proposed any registration prior statement pursuant to the effectiveness clause (iii) above, such Holder will discontinue its disposition of the Registration Statement relating Registrable Securities pursuant to such request due to marketing conditions or regulatory reasons relating to registration statement and, if so directed by the Company, will deliver to the Company (Bat the Company’s expense) the Registration Statement relating to all copies, other than permanent file copies, then in such request is not declared effective within 60 days Holder’s possession of the date prospectus covering such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included that was in effect at the applicable time of receipt of such notice. If the Company shall have withdrawn or prematurely terminated a registration relating statement filed under Section 2.1(a)(i) (whether pursuant to such request, such registration is adversely affected by clause (iii) above or as a result of any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), (D) more than 10% the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities requested covered by the Holders to be included in withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the registration are not so included pursuant to Section 2.1(b), Company shall give any notice of withdrawal or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result postponement of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contraryregistration statement, the Company will pay all expenses shall, not later than five (5) Business Days after the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in accordance with Section 2.8no event later than three (3) in connection with any request for registration pursuant to this Agreement regardless months after the date of whether the postponement or not such request counts toward the limitation set forth above.
(h) In addition to the foregoingwithdrawal), the Company will use its reasonable best efforts to remain qualified for effect the registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the methods Initiating Holder shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of distribution elected by the Holdersthis Agreement), including by means and such registration shall not be withdrawn or postponed pursuant to clause (iii) of an underwritten offering. Upon filing a Short-Form Section 2.1(b) above.
(c) In connection with any Demand Registration, the Company shall use its reasonable best efforts have the right to keep designate the lead managing underwriter (any lead managing underwriter for the purposes of this Agreement, the “Manager”) in connection with such Short-Form Registration effective with the SEC at all times registration and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to each other managing underwriter for such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (registration; provided that in each case, notwithstanding anything each such underwriter is reasonably satisfactory to the contrary in Section 2.1(d))PVF.
Appears in 1 contract
Demand Registrations. (a) At Subject to Section 5.1(d), at any time and from time to timetime after the one-year anniversary of the Closing, the Holders’ Representative any Holder shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act and/or a prospectus under applicable Canadian securities laws covering all or any part of their respective Registrable Securities, by delivering a written request therefor to the Company specifying the number of Registrable Securities owned by Holders and requested to be included in such registration by such Holder(s) and the intended method of distribution thereof. All such requests pursuant to this Section 5.1(a) are referred to herein as "Demand Notice Registration Requests" and the registrations so requested are referred to be so registered herein as "Demand Registrations" (a “with respect to any Demand Registration”, the Holder making such demand for registration being referred to as the "Initiating Holder"); provided. As promptly as practicable, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following but no later than 15 days after receipt of a Demand NoticeRegistration Request, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by give written notice (the Company "Demand Exercise Notice") of such Demand Notice (subject Registration Request to paragraph (e) all Holders of this Section 2.1), a Registration Statement relating to the offer and sale record of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofSecurities.
(b) No securities The Company shall be included under any include in a Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of (i) the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, of the Initiating Holder and the managing underwriter(s(ii) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities of any other Holder (collectively, the "Other Holders") that shall have made a written request to be so included together with all such Other Securities, then there shall be included the Company for inclusion thereof in such offering registration (which request shall specify the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such maximum number of Registrable Securities and Other Securities shall intended to be allocated for inclusion as follows:
(idisposed of by such Holder(s)) first, within 30 days after the Registrable Securities for which inclusion in such demand offering was requested by receipt of the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holderDemand Exercise Notice.
(c) The Company shall, as expeditiously as possible following a Demand Registration Request, use its best efforts to (i) effect the registration under the Securities Act (including by means of a shelf registration pursuant to Rule 415 under the Securities Act if so requested and if the Company is then eligible to use such a registration) of the Registrable Securities which the Company has been so requested to register by such Holder, for distribution, in accordance with such intended method of distribution, and (ii) if requested by the Initiating Holder, obtain acceleration of the effective date of the registration statement relating to such registration.
(d) The rights of Holders collectively of Registrable Securities to request Demand Registrations pursuant to Section 5.1(a) are subject to the following limitations: (i) the Company shall not be obligated to effect a Demand Registration within six months after the effective date of any other registration of equity securities by the Company (other than pursuant to a registration on Form S-4 or Form S-8 or any successor or similar form that is then in effect) which was not effected on Form S-3 (or any successor or similar short-form registration statement), provided, however, that this clause (i) shall not be applicable with respect to any Registrable Securities beneficially owned by any Holder if in connection with a Piggyback Registration such Holder requested during such six month period to have such Registrable Securities included in such Piggyback Registration and Registrable Securities with a Current Market Value exceeding $25,000,000 (valued at the time of such request) were not included pursuant to Section 5.2(d), (ii) in no event shall the Company be required to effect, in the case of SPE, more than four Demand Registrations, in the case of USI, more than four Demand Registrations, and, in the case of the Claridge Group, more than one Demand Registration, (iii) the Company shall not be obligated to effect a Demand Registration by either SPE or USI if a Demand Registration initiated by either SPE or USI shall have been effected in the preceding 12 months, and (iv) the Company shall not be obligated to effect a Demand Registration the reasonably anticipated aggregate price to the public of which would not exceed $25,000,000. Upon assignment by a Stockholder of the right to initiate a Demand Registration to a Third Party Transferee in accordance with Section 4.5(b)(iv), such Stockholder shall cease to have the right to initiate such Demand Registration and the number of Demand Registrations to which such Stockholder shall be entitled to request no more than three Demand Registrations of as set forth in the Company, and in preceding sentence shall be reduced accordingly. In no event shall the Company be required to effect more than one nine Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts Registrations pursuant to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h)this Agreement.
(e) The Company shall select the registration statement form for any registration pursuant to this Section, provided, that if any registration requested pursuant to this Section which is proposed by the Company to be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), effected by the filing of a registration statement on Form S-3 (or initial effectiveness ofany successor or similar short-form registration statement) shall be in connection with an underwritten public offering, or suspend the use of, a Demand Registration Statement and if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of managing underwriter shall advise the Company certifying in writing that, in its opinion, the good faith judgment use of the Board another form of Directors registration statement is of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed importance to the publicsuccess of such proposed offering, the premature disclosure of which would materially adversely affect the Companythen such registration shall be effected on such other form.
(f) A registration requested pursuant to this Section 5.1 will not be deemed to have been effected unless it has become effective, provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is subject to any stop order, injunction or other order or requirement of the Commission or other governmental agency or court, such registration will be deemed not to have been effected.
(g) If a requested registration pursuant to this Section involves an underwritten offering, the Company shall have the right to select in good faith the investment banker or bankers and managers to administer the offering; provided, however, that such investment banker or bankers and managers shall be reasonably satisfactory to the Initiating Holder. The Holders’ Representative Initiating Holder shall notify the Company if such Holder objects to any investment banker or manager selected by the Company pursuant to this Section 5.1(g) within 10 Business Days after the Company has notified such Holder of such selection.
(h) If the managing underwriter of any underwritten offering shall advise the Holders participating in a Demand Registration that the Registrable Securities covered by the registration statement cannot be sold in such offering within a price range acceptable to the Initiating Holder, then the Initiating Holder shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration registration statement be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
registration statement. If a requested registration pursuant to this Section 5.1 involves an underwritten offering and the managing underwriter advises the Company that, in its opinion, the number of securities requested to be included in such registration (g) No request for registration will count for the purposes including securities of the limitations Company which are not Registrable Securities) exceeds the number which can be sold in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior such offering within a price range acceptable to the effectiveness of Initiating Holder, the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included Company will include in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of only the Registrable Securities requested to be included in such registration pursuant to this Section 5.1. In the event that the number of Registrable Securities requested to be included in such registration exceeds the number which, in the opinion of such managing underwriter, can be sold in such offering within a price range acceptable to the Initiating Holder, the Company shall include in such registration the number of Registrable Securities proposed to be sold by the Initiating Holder and, to the extent the managing underwriter believes that additional Registrable Securities can be sold in such offering within such price range, the number of Registrable Securities proposed to be sold by the Other Holders, allocated pro rata among the Other Holders on the basis of the relative number of shares of Registrable Securities requested to be registered pursuant to clause (ii) of Section 5.1(b) by each such Holder. In the event that the number of Registrable Securities requested by all Holders to be included in such registration is less than the registration are not so included pursuant to Section 2.1(b)number which, or (E) in the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with opinion of the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrarymanaging underwriter, can be sold, the Company will pay all expenses (may include in accordance with Section 2.8) such registration a number of securities that the Company proposes to sell up to the number of securities that, in connection with any request for registration pursuant the opinion of the underwriter, can be sold in such offering within a price range acceptable to this Agreement regardless of whether or not such request counts toward the limitation set forth aboveInitiating Holder.
(hi) In addition to the foregoing, If the Company will use its reasonable best efforts at any time grants to remain qualified for any other holders of Voting Shares (or securities that are convertible, exchangeable or exercisable into Voting Shares) any rights to request the Company to effect the registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) Act of any such Voting Shares (or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”such securities) and on terms more favorable to such holders than the Company shall fileterms set forth in this Section 5.1, as promptly as reasonably practicable after then the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration Holders shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related entitled to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))more favorable rights and benefits.
Appears in 1 contract
Demand Registrations. (a) At Subject to the terms and conditions hereof, solely during any time and from time period when the Company is not eligible under Applicable Law to timeregister Registrable Securities on Form S-3 pursuant to Section 1.3, the Holders’ Representative any Holder (“Requesting Stockholders”) shall have the right by delivering one or more written notices be entitled to make requests of the Company (each, a “Demand NoticeDemand”) to require for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Stockholders that equals or is greater than the Registrable Amount (a “Demand Registration”). Thereupon the Company towill, pursuant subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as reasonably practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register under and by the Requesting Stockholders for disposition in accordance with the provisions intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which the Securities Act Company has been requested to register pursuant to Section 1.1(b), but subject to Section 1.1(e); and
(iii) all shares of Company Common Stock which the number Company may elect to register in connection with any offering of Registrable Securities owned by Holders pursuant to this Section 1.1, but subject to Section 1.1(e); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and requested by such Demand Notice the additional shares of Company Common Stock, if any, to be so registered registered.
(a “b) A Demand Registration”); provided, however, that a Demand Notice may only be made if shall specify (i) the amount aggregate number of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or in such Demand Registration, (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected intended method or methods of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the applicable Registrable SecuritiesRequesting Stockholder(s). Following Within five (5) Business Days after receipt of a Demand NoticeDemand, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days give written notice of such Demand to all other Holders of Registrable Securities. The Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by which the Company of such Demand Notice has received a written request for inclusion therein from the Holder thereof within five (5) Business Days after the Company’s notice required by this paragraph has been given, subject to paragraph (e) Section 1.1(e). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2.11.1(b), a Registration Statement relating . The Company shall not be required to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under effect any Demand Registration Statement related within one hundred eighty (180) days after the effective date of a previous Demand Registration and shall not be obligated to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein effect more than three (3) Demand Registrations pursuant to this Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder1.1.
(c) The Holders collectively Demand Registrations shall be entitled to request no more than three Demand Registrations of on Form S-1 or any similar long-form registration statement that may be available at the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month periodtime.
(d) In The Company shall maintain the event effectiveness of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof hundred eighty (180) days or such shorter period in which all Registrable Securities included in such Demand Registration Statement have actually been soldsold thereunder (provided, that such period shall be extended for a period of time equal to the period the Holder of Registrable Securities refrains from selling any securities included in such registration statement at the request of the Company or the lead managing underwriter(s) pursuant to the provisions of this Agreement). For The Company shall not be obligated to effect any Demand Registration (A) within one hundred eighty (180) days of a “firm commitment” Underwritten Offering in which all Holders were offered “piggyback” rights pursuant to Section 1.2 (subject to Section 1.2(b)) and at least 80% of the number of Registrable Securities requested by such Requesting Stockholders to be included in such Demand Registration were included and sold or (B) within one hundred eighty (180) days of the completion of any other Demand Registration (including, for the avoidance of doubt, the foregoing sentence is not intended any Underwritten Offering pursuant to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form any Shelf Registration contemplated by Section 2.1(h) as required by Section 2.1(hStatement).
(e) If, in connection with a Demand Registration or Shelf Offering that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its (their) opinion, the inclusion of all of the securities sought to be registered in connection with such Demand Registration would materially adversely affect the price that will be paid in such offering or the marketability thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first pro rata among the Holders that have requested to participate in such Demand Registration based on the relative number of Registrable Securities then held by each such Holder (provided that any Registrable Securities thereby allocated to a Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Holders in like manner); (ii) second, any Existing Registrable Securities or Primary Issuance Funding Securities requested to be registered or sold by the Demand Committee, any securities entitled to Other Registration Rights that are pari passu with the piggyback rights contained in the Existing Registration Rights Agreement requested to be registered by the holders thereof and any securities the Company proposes to register or sell (other than Primary Issuance Funding Securities), ratably among the Company, such participating Covered Persons and the holders of such Other Registration Rights based on the respective amounts of securities the Company has proposed to include, the Demand Committee has requested to include and the holders of such Other Registration Rights have requested to include and (iii) third, all other securities of the Company duly requested to be included in such registration statement by other persons, pro rata on the basis of the amount of such other securities requested to be included or such other allocation method determined by the Company.
(f) The Company shall be entitled to postpone (but not more than once upon written notice and the delivery of a certificate in accordance with this Section 1.1(f) to the Requesting Stockholders and any six-month periodother Holders whose Registrable Securities are covered by such Demand pursuant to Section 1.1(b), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), ) the filing or initial effectiveness of, or suspend the use of, of a registration statement for any Demand Registration Statement if in the event of a Blackout Period (subject to the conditions of the definition thereof) until the expiration of the applicable Blackout Period. In the event of a Blackout Period, the Company delivers shall deliver to the Holders’ Representative Requesting Stockholders requesting registration and any other Holders whose Registrable Securities are covered by such Demand pursuant to Section 1.1(b) a certificate signed by both either the Chief Executive Officer and Chief Financial Officer chief executive officer or the chief financial officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing the conditions described in the definition of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration StatementBlackout Period are met.
(g) No request for registration Any time that a Demand Registration or Shelf Offering involves an Underwritten Offering, the Holders who have requested to participate in such Demand Registration or Shelf Offering shall select the investment banker(s) and manager(s) that will count for serve as managing underwriters (including which such managing underwriters will serve as lead or co-lead) and underwriters with respect to the purposes offering of such Registrable Securities; provided that such investment banker(s) and manager(s) shall be subject to the prior written consent of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness Holders of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% a majority of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested then held by the Holders Company, not to be included in the registration are not so included pursuant to Section 2.1(b)unreasonably withheld, conditioned or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth abovedelayed.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Demand Registrations. (a) At any time and from time to timeafter the date hereof, the Holders’ Representative shall have the right by delivering one or more written notices to holders of Registrable Shares may request the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register for sale under and in accordance with the provisions of the Securities Act all or any portion of the number of Registrable Securities owned by Holders and requested Shares held by such Demand Notice to be so registered requesting holder or holders for sale in the manner specified in such notice (a “Demand Registration”); provided, howeverthat each Demand Registration be at least equal to 1,000,000 shares or such lesser amount agreed to by the Company (as such number may be adjusted for stock splits, stock dividend and similar events) of the Company’s then outstanding common shares; provided further, that a Demand Notice may only the number of Registrable Shares to be made if included in the registration shall be no greater than the amount permitted by United States federal law, state law or other law or Commission rule or policy; provided further, that the Expenses Shares shall be included for the registration prior to any other Registrable Shares. If United States federal law, state law or other law or Commission rule or policy requires a limitation of the number of Registrable Securities requested Shares to be registered is either under this Section 3 pursuant to any particular registration statement, then Registrable Shares shall be excluded in such manner that the securities to be sold shall be allocated among the selling holders pro rata based on their ownership of Registrable Shares. In any event, all securities to be sold other than (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or Shares, (ii) reasonably expected shares of Common Stock held by Piraeus Bank A.E. which are subject to generate aggregate gross proceeds on sale registration rights and (iii) shares of Common Stock held by any other security holder with registration rights pursuant to an agreement under which such holder’s demand for registration of its securities is deemed to be simultaneous with the demand to register the Registrable Shares or who otherwise has unsubordinated registration rights will be excluded prior to deducting underwriting discounts any exclusion of Registrable Shares, and commissions and offering expenses) all shares of at least $25 million. A Demand Notice Common Stock held by Focus Maritime Corp., any Affiliate of Focus Maritime Corp. or any direct or indirect transferee of shares previously held by Focus Maritime Corp. shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect be excluded prior to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company exclusion of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofShares.
(b) No securities The Obligee shall be included under any have the right to three (3) Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein Registrations pursuant to this Section 2.1(a). Subject to the preceding sentence3, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offeringprovided, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to Company will not be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required obligated to effect more than one Demand Registration in any six (6) month period; provided further, that if for any reason the Commission does not permit all of the Registrable Shares to be included in a registration statement filed pursuant to this Agreement, (i) the Obligee shall have the right to an unlimited number of Demand Registrations pursuant to this Section 3 and (ii) the Company shall use its best efforts to prepare and file, as promptly as practicable but in no event later than ten (10) days after the date on which the Commission shall indicate as being the first date or time that such filing may be made, an additional registration statement covering the resale of all Registrable Shares not already covered by an existing and effective registration statement.
(c) Notwithstanding anything to the contrary contained herein, the Company shall not be required to effect a registration pursuant to this Section 3 during the period commencing thirty (30) calendar days prior to the estimated filing date of, and ending on the date which is within one hundred eighty (180) calendar days after the effective date of a registration statement filed by the Company covering an underwritten public offering, which includes securities to be sold for the account of the Company.
(d) In the event Following receipt of a Demand Registrationany notice under this Section 3, the Company shall use its reasonable best efforts to maintain the continuous effectiveness immediately notify all holders of the applicable Registration Statement for a period Registrable Shares from whom notice has not been received and may notify other holders that have piggyback registration rights and such holders shall then be entitled within ten (10) business days after receipt of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of notice from the Company to maintain request the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, include in the aggregate, 90 days during requested registration all or any twelve-month period), portion of their Registrable Shares. If no request for inclusion from a holder is received within the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Companyspecified time, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative holder shall have the no further right to notify participate in such registration. If all the Company that it has determined that the Registration Statement relating shares of Common Stock requested to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registered by holders with registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is rights are not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders permitted to be included in the registration statement, then Registrable Shares shall be excluded in such manner that the securities to be sold shall be allocated among the selling holders pro rata based on their ownership of Registrable Shares, provided that all securities to be sold other than (i) Registrable Shares, (ii) shares of Common Stock held by Piraeus Bank A.E. which are not so included subject to registration rights and (iii) shares of Common Stock held by any other security holder with registration rights pursuant to Section 2.1(b), or (E) the conditions an agreement under which such holder’s demand for registration of its securities is deemed to closing specified in any underwriting agreement or purchase agreement entered into in connection be simultaneous with the demand to register the Registrable Shares or who otherwise has unsubordinated registration relating rights will be excluded prior to such request are not satisfied any exclusion of Registrable Shares, and all shares of Common Stock held by Focus Maritime Corp., any Affiliate of Focus Maritime Corp. or any direct or indirect transferee of shares previously held by Focus Maritime Corp shall be excluded prior to any exclusion of Registrable Shares. The Company shall within ninety (other than 90) calendar days, cause to be filed with the Commission a registration statement on an appropriate form as a result of a material default or breach thereunder shall be selected by the applicable Holders). Notwithstanding anything Company providing for the registration under the Securities Act of the Registrable Shares that the Company has been so requested to register by all such holders, to the contrary, extent necessary to permit the Company will pay all expenses (disposition of such Registrable Shares so to be registered in accordance with the intended methods of disposition thereof specified in such registration statement. The Company shall use its commercially reasonable efforts to have such registration statement declared effective by the Commission within seventy-five (75) calendar days following the filing of a registration statement pursuant to a Demand Registration if the registration statement is not reviewed by the Commission and within one hundred eighty (180) calendar days following the filing of a registration statement pursuant to a Demand Registration in the event that the registration statement is reviewed by the Commission, and to keep such registration statement continuously effective for the period specified in Section 2.88(b); provided however that such period shall expire as set forth in Section 5. The Company may at its option withdraw any registration statement which covers securities that are not Registrable Shares.
(e) If the holders requesting such registration intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 3 and the Company shall include such information in connection with the written notice referred to in paragraph (d) above. The right of any request for holder to participate in an underwritten registration pursuant to this Agreement regardless Section 3 shall be conditioned upon such holder’s agreeing to participate in such underwriting and to permit inclusion of whether such holder’s Registrable Shares in the underwriting. If such method of disposition is an underwritten public offering, the holders of at least a majority in interest of the Registrable Shares 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 not such request counts toward the limitation set forth abovedelayed.
(hf) In addition to Registrable Shares, a registration statement filed pursuant to this Section 3 may, subject to the foregoingfollowing provisions, also include (i) shares of Common Stock for sale by the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 the Company’s own account, (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Actii) shares of Common Stock held by officers or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and directors of the Company shall fileand (iii) shares of Common Stock held by Other Shareholders, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing in each case for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods method of distribution elected disposition specified by the Holders, including by means of an underwritten offeringrequesting holders. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep If such Short-Form Registration effective with the SEC at all times and any Short-Form Registration registration shall be re-filed upon its expirationunderwritten, each holder of Registrable Shares the Company, such officers and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related directors and Other Shareholders proposing to distribute their shares through such Short-Form Registration as may be reasonably underwriting shall, if requested by the Holders’ Representative underwriter, enter into an underwriting agreement and a lock-up agreement, each in customary form, with the representative of the underwriter or underwriters selected for such underwriting and enter into other customary agreements (such as powers of attorney and custody agreements). If the managing underwriter determines that marketing factors require a limitation of the number of Registrable Shares to be registered under this Section 3, then Registrable Shares shall be excluded in such manner that the securities to be sold shall be allocated among the selling holders pro rata based on their ownership of Registrable Shares. In any event, all securities to be sold other than (i) Registrable Shares, (ii) shares of Common Stock held by Piraeus Bank A.E. which are subject to registration rights and (iii) shares of Common Stock held by any other security holder with registration rights pursuant to an agreement under which such holder’s demand for registration of its securities is deemed to be simultaneous with the demand to register the Registrable Shares or who otherwise requiredhas unsubordinated registration rights will be excluded prior to any exclusion of Registrable Shares, until and all shares of Common Stock held by Focus Maritime Corp., any Affiliate of Focus Maritime Corp. or any direct or indirect transferee of shares previously held by Focus Maritime Corp. shall be excluded prior to any exclusion of Registrable Shares. No Registrable Shares or any other security excluded from the Holders no longer hold registration and underwriting by reason of the underwriter’s marketing limitation shall be included in such registration and underwriting. If any holder of Registrable Securities (Shares, officer, director or Other Shareholder who has requested inclusion in each casesuch registration as provided above, notwithstanding anything disapproves of the terms of the underwriting, such holder of securities may elect to withdraw therefrom by written notice to the contrary in Section 2.1(d))Company and the managing underwriter. The securities so withdrawn shall also be withdrawn from registration.
Appears in 1 contract
Sources: Registration Rights Agreement (NewLead Holdings Ltd.)
Demand Registrations. (ai) At Subject to Sections 2.1(b), 2.1(e) and 2.3 below, at any time and from time to timetime after the termination of the Merger Agreement, the Holders’ Representative each Holder shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective file a registration statement under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under covering all or any Demand Registration Statement related to an underwritten offering without the part of their respective Registrable Securities, by delivering a written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject request therefor to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on Company specifying the number of Registrable Securities Beneficially Owned to be included in such registration by each such Holder; andHolder and the intended method of distribution thereof. All requests pursuant to this Section 2.1(a)(i) are referred to herein as "Demand Registration Requests," and the registrations requested are referred to herein as "Demand Registrations." As promptly as practicable, but no later than ten days after receipt of a Demand Registration Request, the Company shall give written notice of such Demand Registration Request to all Holders of record of Registrable Securities.
(ii) secondCompany, among subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Holder(s) which requested such registration and (y) the Registrable Securities of any holders of Other Securities, pro rata, based on Holder which shall have made a written request to the Company for registration thereof (which request shall specify the maximum number of Other Registrable Securities Beneficially Owned intended to be disposed of by each such holderHolder(s)) within 30 days after the receipt by such Holder of written notice (or, 15 days if, at the request of the Holder(s) which requested such registration, the Company states in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on Form S-3) from the Company of a Demand Registration Request.
(ciii) The Holders collectively shall be entitled to request no more than three Demand Registrations of the CompanyCompany shall, and in no event shall the Company be required to effect more than one as promptly as reasonably practicable following a Demand Registration in any six month period.
(d) In the event of a Demand RegistrationRequest, the Company shall use its reasonable best efforts to maintain (x) effect such registration under the continuous effectiveness Securities Act (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the Securities Act if so requested and if the Company is then eligible to use such a registration) of the applicable Registrable Securities which the Company has been so requested to register, for distribution in accordance with such intended method of distribution, and (y) if requested by the Holder(s) making such demand for registration, obtain acceleration of the effective date of the registration statement relating to such registration.
(b) The Demand Registration Statement rights granted to Holders in Section 2.1(a) are subject to the following limitation: (i) each registration in respect of a Demand Registration Request must include at least 10% of the Registrable Securities outstanding as of the date hereof (provided that the limitation set forth in this clause (i) shall not be in effect at any time the Holders' Registrable Securities would otherwise be able to be sold under Rule 144 under the Securities Act but for the Company's failure to comply with the information requirements thereunder, unless at such time, the Company's outside counsel (which shall be reasonably acceptable to the Holders requesting such registration) delivers a written opinion of counsel to such Holders to the effect that such Registrable Securities may be publicly offered and sold without registration under the Securities Act); (ii) the Company shall not be required to cause more than one additional registration pursuant to Section 2.1(a)(i) to be declared effective within a period of at least one year 180 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation any registration statement of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once effected in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, connection with a Demand Registration Statement Request; and (iii) if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer Board of Directors of the Company certifying thatCompany, in its good faith judgment, determines that any registration of Registrable Securities should not be made or continued because in the good faith judgment of the Board of Directors of the Company, such registration, offering or use it presents a reasonable risk that it would reasonably be expected to materially adversely affect or materially interfere with with, or require disclosure of, any bona fide and imminent material financing of financing, acquisition, corporate reorganization or merger or other transaction involving the Company or any imminent material transaction under consideration by of its subsidiaries (a "Valid Business Reason"), the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement may postpone filing a registration statement relating to a Demand Registration be abandoned Request (and may postpone filing any amendment to, or withdrawnsupplement of, or seeking acceleration of, any registration statement previously filed) until such Valid Business Reason no longer exists, but in no event for more than 120 days, and, in which event case a registration statement has been filed relating to a Demand Registration Request if the Valid Business Reason has not resulted from actions taken by the Company, the Company may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement; and the Company shall promptly abandon give written notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof. Notwithstanding anything to the contrary herein, during any 365-day period, the Company may not suspend the availability of registration rights hereunder (whether through postponement of filing a registration statement, withdrawal of a filed registration statement or the suspension of an effective registration statement) relating to a Demand Registration Statement.
Request because of a Valid Business Reason more than four times or for more than an aggregate of 180 days, subject to reduction as provided in Section 2.7(a). Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw any registration statement pursuant to clause (giii) No request for above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement and, if so directed by the Company, will count deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in such Holder's possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice. If the Company shall have withdrawn or prematurely terminated a registration statement filed under Section 2.1(a)(i) (whether pursuant to clause (iii) above or as a result of any stop order, injunction or other order or requirement of the Commission or any other governmental agency or court), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the limitations Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement, the Company shall, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in Section 2.1(c) if: (A) no event later than 120 days after the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness date of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceedpostponement), (C) prior use its reasonable best efforts to effect the sale of at least 90% registration under the Securities Act of the Registrable Securities included covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the applicable registration relating to Holder(s) making the Demand Registration Request shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of this Agreement).
(c) The Company, subject to Sections 2.3 and 2.6, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), (i) authorized but unissued shares of Common Stock or shares of Common Stock held by the Company as treasury shares and (ii) any other shares of Common Stock which are requested to be included in such registration pursuant to the exercise of piggyback registration rights granted by the Company ("Additional Piggyback Rights"); provided, however, that such inclusion shall be permitted only to the extent that it is adversely affected pursuant to and subject to the terms of the underwriting agreement or arrangements, if any, entered into by the Holder(s) making such Demand Registration Request. With respect to any Demand Registration, except as set forth in the preceding sentence no securities other than the Registrable Securities of the Holder(s) permitted to be included in such registration pursuant to Section 2.1(a)(ii) shall be included among the securities covered by such registration.
(d) The managing underwriter for any Demand Registration shall be either ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. or ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney or any successor to either (such choice to be at the option of the Holder) or such other underwriter(s) as the Holders and the Company mutually agree in good faith.
(e) The Company shall be obligated to effect not more than three (3) Demand Registrations, subject to the provisions of Section 2.1 hereof. For purposes of the preceding sentence, a Demand Registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration statement or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC Commission or other Governmental Entity governmental entity for any reason not attributable to MET or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are any other Holder and such interference is not so included pursuant to Section 2.1(b)thereafter eliminated, or (Eiii) if the conditions to closing specified in any the underwriting agreement or purchase agreement entered into in connection with the registration relating to such request Demand Registration are not satisfied or waived, other than by reason of a failure on the part of MET or any Holder. If the Company shall have complied with its obligations under this Agreement, a right to a Demand Registration pursuant to this Section 2.1 shall be deemed to have been satisfied upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been distributed pursuant to the registration statement related thereto, and (y) the date as of which such Demand Registration shall have been Continuously Effective for the applicable period specified in Section 2.4(b) hereof following the effectiveness of such registration statement, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated. Furthermore, once the Company has filed and caused to be effective a shelf registration statement in connection with its obligations under section 2.1 hereof, each separate underwritten offering effected pursuant to such shelf registration statement which satisfies the conditions of the second sentence of this subsection 2.1(e) (other than as the first such underwritten offering) shall constitute an additional Demand Registration; provided that such shelf registration statement shall constitute a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth aboveDemand Registration.
(hf) In addition to the foregoing, the Company will The Holders shall use its reasonable best efforts to remain qualified cause any distribution of Registrable Securities pursuant to a Demand Registration to be public and reasonably broad, so long as such breadth does not adversely impact the price obtained for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Sources: Registration Rights Agreement (Tower Realty Trust Inc)
Demand Registrations. (ai) At Subject to Section 2.1(c), at any time and or from time to timetime after the six-month anniversary of the first date on which the Company shall have effected the registration under the Securities Act of any shares of Common Stock on or after the date hereof, the Holders’ Representative one or more Holders shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act covering Registrable Securities with an aggregate value of $10,000,000 or greater, by delivering a written request therefor to the Company specifying the number of Registrable Securities owned to be included in such registration by such Holders and the intended method of distribution thereof. All such requests by any Holder pursuant to this Section 2.1(a)(i) are referred to as “Demand Registration Requests,” the registrations so requested by are referred to as “Demand Registrations” and the Holders making such demand for registration are referred to as the “Initiating Holders.” As promptly as practicable, but no later than ten days after receipt of a Demand Notice to be so registered Registration Request, the Company shall give written notice (a “Demand RegistrationExercise Notice”) of such Demand Registration Request to all Holders of record of Registrable Securities.
(ii) The Company, subject to Sections 2.3 and 2.7, shall include in a Demand Registration (A) the Registrable Securities of the Initiating Holders and (B) the Registrable Securities of any other Holder of Registrable Securities that shall have made a written request to the Company within the time limits specified below for inclusion in such registration (together with the Initiating Holders, the “Participating Holders”). Any such request from the other Holders must be delivered to the Company within 15 days after the receipt of the Demand Exercise Notice and must specify the maximum number of Registrable Securities intended to be disposed of by such other Holders.
(iii) The Company, as expeditiously as possible but subject to Section 2.1(c), shall use its commercially reasonable efforts to effect such registration under the Securities Act of the Registrable Securities that the Company has been so requested to register for distribution in accordance with such intended method of distribution.
(b) Registrations under this Section 2.1 shall be on such appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which form shall be selected by the Company and shall be reasonably acceptable to the Majority Participating Holders.
(c) The Demand Registration rights granted in Section 2.1(a) to the Holders are subject to the following limitations:
(i) the Company shall not be required to cause a registration pursuant to Section 2.1(a) to be filed within 90 days or to be declared effective within a period of 180 days after the effective date of any other registration statement of the Company filed pursuant to the Securities Act;
(ii) if in any registration of Registrable Securities would require disclosure of information not otherwise then required by law to be publicly disclosed and, in the good faith judgment of the board of directors of the Company, such disclosure is reasonably likely to adversely affect any material financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Company or otherwise have a material adverse effect on the Company (a “Valid Business Reason”), the Company may postpone or withdraw a filing of a registration statement relating to a Demand Registration Request until such Valid Business Reason no longer exists, but in no event shall the Company avail itself of such right for more than 90 days, in the aggregate, in any period of 365 consecutive days (such period of postponement or withdrawal under this clause (ii), the “Postponement Period”); and the Company shall give notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof; and
(iii) the Company shall not be obligated to effect more than three Demand Registrations under Section 2.1(a) for the benefit of transferees of the Original Holders granted demand registration rights by the Original Holders pursuant to this Agreement.. If the Company shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (ii) above, the Company shall not register any equity security of the Company during the period of postponement or withdrawal. Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw any registration statement pursuant to clause (ii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Company shall have withdrawn or prematurely terminated a registration statement filed under Section 2.1(a)(i), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event more than 90 days after the date of the postponement or withdrawal), the Company shall use its commercially reasonable efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1.
(d) The Company, subject to Sections 2.3 and 2.7, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), (i) authorized but unissued shares of Common Stock or shares of Common Stock held by the Company as treasury shares and (ii) any other shares of Common Stock that are requested to be included in such registration pursuant to the exercise of piggyback rights granted by the Company that are not inconsistent with the rights granted in, or otherwise conflict with the terms of, this Agreement (“Additional Piggyback Rights”); provided, however, that such inclusion shall be permitted only to the extent that it is pursuant to and subject to the terms of the underwriting agreement or arrangements, if any, entered into by the Participating Holders.
(e) A Holder may withdraw its Registrable Securities from a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) Registration at least 20% of the aggregate number of Registrable Securities then held by any time. If all such Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Noticedo so, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect cease all efforts to any underwritten offering, secure registration and such registration nonetheless shall be deemed a Demand Registration for purposes of this Section 2.1 unless (i) the withdrawal is made following withdrawal or 30 days with respect to any other offering, after receipt postponement of such registration by the Company of such Demand Notice (subject pursuant to paragraph (e) of this a Valid Business Reason as contemplated by Section 2.12.1(c), a Registration Statement relating to (ii) the offer and sale withdrawal is based on the reasonable determination of the Registrable Securities Holders who requested to be included therein such registration that there has been, since the date of the Demand Registration Request, a material adverse change in the business or prospects of the Company or (iii) the Holders who requested such registration shall have paid or reimbursed the Company for all of the reasonable out-of-pocket fees and expenses incurred by the Holders thereof Company in accordance connection with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofwithdrawn registration.
(bf) No securities shall be included under any A Demand Registration Statement related shall not be deemed to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, have been effected and the managing underwriter(s) of shall not count as such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, unless a registration statement with respect thereto has become effective and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement has remained effective for a period of at least one year after the effective date thereof 180 days or such shorter period in during which all Registrable Securities included in covered by such Registration Statement have actually been sold. For the avoidance of doubtsold or withdrawn, the foregoing sentence is not intended or, if such Registration Statement relates to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period)an underwritten offering, for a reasonable such longer period of time not in excess of 60 days (and not for periods exceedingas, in the aggregate, 90 days during any twelve-month periodopinion of counsel for the underwriter(s), the filing or initial effectiveness of, or suspend the use of, is required by law for delivery of a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, prospectus in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere connection with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in by an underwriter or dealer, (ii) if, after the applicable registration relating statement with respect thereto has become effective, it becomes subject to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity governmental agency or courtcourt for any reason, (Diii) more than 10% of the Registrable Securities requested if it is withdrawn by the Holders to be included in the registration are not so included Company pursuant to a Valid Business Reason as contemplated by Section 2.1(b), 2.1(c) or (Eiv) if the conditions to closing specified in any underwriting the purchase agreement or purchase underwriting agreement entered into in connection with the registration relating to such request Demand Registration are not satisfied (satisfied, other than as a result solely by reason of a material default some act or breach thereunder by omission of the applicable Participating Holders). Notwithstanding anything to the contrary, the Company will pay all expenses .
(in accordance with Section 2.8g) in In connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Demand Registration, the Company shall use its reasonable best efforts to keep may designate the lead managing underwriter in connection with such Short-Form Registration effective with the SEC at all times registration and any Short-Form Registration shall be re-filed upon its expirationeach other managing underwriter for such registration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise requiredprovided, until the Holders no longer hold Registrable Securities (that, in each case, notwithstanding anything each such underwriter is reasonably satisfactory to the contrary in Section 2.1(d))Majority Participating Holders.
Appears in 1 contract
Demand Registrations. (a) At (i) Subject to Sections 2.1(b) and 2.3, at any time and from time to time, following at least one (1) year after the Holders’ Representative effectiveness of the registration statement on Form S-1 relating to the IPO and for so long as the applicable Investor Shareholder owns at least 7.5% of the outstanding Registrable Securities, an Investor Shareholder shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file one or more registration statements under and in accordance with the provisions of the Securities Act covering all or any part of its and its Affiliates’ Registrable Securities by delivering a written request therefor to the Company specifying the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered included in such registration and the intended method of distribution therefor (a “Demand RegistrationRegistration Request”); provided. The registration so requested is referred to herein as a “Demand Registration” (with respect to any Demand Registration, however, that the Investor Shareholder(s) making such demand for registration being referred to as the “Initiating Holders”).
(ii) The Company shall give written notice (the “Demand Exercise Notice”) of such Demand Registration Request (A) to each of Parent and the THL Party no later than five (5) Business Days after receipt of a Demand Notice may only be made if the amount Registration Request and (B) to all other Holders of record of Registrable Securities requested no later than five (5) Business Days after the filing of a registration statement pursuant to be registered is either the Demand Registration Request (ior, in the case of a request for the filing of an automatic shelf registration statement, five (5) at least 20% Business Days after receipt of the aggregate Demand Registration Request).
(b) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities which shall have made a written request to the Company for inclusion in such registration pursuant to Section 2.2 (which request shall specify the maximum number of Registrable Securities then held intended to be disposed of by all Holders or (ii) reasonably expected such Participating Holder on the same terms and pursuant to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected same intended method or methods of disposition as are set forth in the Demand Registration Request of the applicable Registrable Securities. Following Initiating Holder) within ten (10) days after the receipt of a the Demand Exercise Notice.
(c) The Company shall, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.12.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to (x) as soon as reasonably practicable, but in no event later than sixty (60) days following receipt of a Demand Registration Request, file with the SEC the form and other necessary documents, and, as soon as reasonably practicable after such filing, use its best efforts to cause such Registration Statement to be declared effective such registration under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering including, without the written consent limitation, by means of the Holders’ Representative, except Registrable Securities requested to be included therein a shelf registration pursuant to Section 2.1(a). Subject Rule 415 under the Securities Act [if so requested and] if the Company is then eligible to the preceding sentence, if any use such a registration) of the Registrable Securities registered pursuant which the Company has been so requested to register, for distribution in accordance with such intended method of distribution, including a distribution to, and resale by, the members or partners of a Holder (a “Partner Distribution”) and (y) if requested by the Initiating Holders, request acceleration of the effective date of the registration statement relating to such registration.
(d) Notwithstanding anything contained herein to the contrary, the Company shall, at the request of any Holder seeking to effect or considering a Partner Distribution, file any Offering Document and otherwise take any action, deemed necessary or advisable by such Holder to effect such Partner Distribution.
(e) Any Initiating Shareholder and any other Holder that has requested its Registrable Securities be included in a Demand Registration are to be sold in may withdraw all or a firm commitment underwritten offering, and the managing underwriter(s) portion of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of its Registrable Securities proposed from such Demand Registration at any time prior to be sold in the effectiveness of the Demand Registration. Upon receipt of a notice to such offering, together effect (A) from the Initiating Shareholder and all other Holders with any Other Securities proposed respect to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution all of the Registrable Securities to be so included together with all by such Other Securities, then there shall be included Holders in such offering the number Demand Registration; or dollar amount of (B) from one or more Holders with respect to Registrable Securities held by them that would cause the anticipated aggregate offering price (after having subtracted all underwriting discounts and such Other Securities that commissions) to fall to $[—] or below, the Company shall cease all effort to secure effectiveness of the applicable Demand Registration.
(f) Notwithstanding anything to the contrary in Section 2.1(a), the opinion of such managing underwriter(sDemand Registration rights granted in Section 2.1(a) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
are subject to the following limitations: (i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(iix) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company shall not be required to effect more than one (1) Demand Registration delivered by Parent pursuant to Section 2.1(a)(i) in any six nine month period.
period (dit being understood that a registration pursuant to a Piggyback Request (as defined below) In by the event Parent shall not constitute a Demand Registration for the purposes of this Section 2.1(f)(i)) and (y) the Company shall not be required to effect more than one (1) Demand Registration delivered pursuant to Section 2.1(a)(i) in any nine month period from the THL Party (it being understood that a registration pursuant to a Piggyback Request by the THL Party shall not constitute a Demand Registration for the purposes of this Section 2.1(f)(i)); (ii) each registration in respect of a Demand RegistrationRegistration Request made by any Holder must include, in the aggregate (based on the Class A Common Stock included in such registration by all Holders participating in such registration), Registrable Securities having an aggregate market value of at least $50 million; and (iii) if the Board, in its good faith judgment, determines that any registration of Registrable Securities should not be made or continued because it would materially interfere with any material financing, acquisition, corporate reorganization, merger, share exchange or other transaction or event involving the Company or any Subsidiary and, in each case, any successor thereto, or because the Company does not yet have appropriate financial statements of acquired or to be acquired entities available for filing (in each case, a “Valid Business Reason”), then (x) the Company may postpone filing a registration statement relating to a Demand Registration Request until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than 120 days after the date the Board determines a Valid Business Reason exists and (y) in case a registration statement has been filed relating to a Demand Registration Request, if the Valid Business Reason has not resulted from actions taken by the Company, any Subsidiary, and, in each case, any successor thereto, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubtmay, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, extent determined in the good faith judgment of the Board to be reasonably necessary to avoid interference with any of Directors the transactions described above, cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than 120 days after the date the Board determines a Valid Business Reason exists (such period of postponement or withdrawal under this clause (iv), the “Postponement Period”). The Company shall give written notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, together with a certificate of such determination signed by the Chief Executive Officer or Chief Financial Officer of the Company, such registrationin each case, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of promptly after the occurrence thereof; provided, however, the Company shall not be permitted to postpone or withdraw a registration statement after the expiration of any imminent material transaction under consideration by Postponement Period until twelve (12) months after the expiration of such Postponement Period. If the Company shall give any notice of postponement or would require the disclosure withdrawal of information that has not been, and is not otherwise required any registration statement pursuant to be, disclosed to the publicclause ‘(x)’ or ‘(y)’ above, the premature disclosure Company shall not, during the Postponement Period, register any Class A Common Stock, other than pursuant to a Special Registration Statement. Each Holder of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify Registrable Securities agrees that, upon receipt of any notice from the Company that it the Company has determined that the Registration Statement relating to a Demand Registration be abandoned withdraw, terminate or withdrawnpostpone amending or supplementing any registration statement pursuant to clause ‘(x)’ or ‘(y)’ above, in which event such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Company shall promptly abandon have withdrawn or withdraw such Registration Statement.
prematurely terminated a registration statement filed under Section 2.1(a)(i) (gwhether pursuant to clause (iii) No request for registration will count for the purposes above or as a result of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), (D) more than 10% the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities requested covered by the Holders to be included in withdrawn or terminated registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the registration are not so included pursuant to Section 2.1(b), Company shall give any notice of withdrawal or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result postponement of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contraryregistration statement, the Company will pay all expenses shall, not later than five Business Days after the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless no event later than 120 days after the date of whether the postponement or not such request counts toward the limitation set forth above.
(h) In addition to the foregoingwithdrawal), the Company will use its reasonable best efforts to remain qualified for effect the registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) Act of the Registrable Securities covered by the withdrawn or any comparable or successor form or forms or any similar short-form postponed registration statement in accordance with this Section 2.1 (“Short-Form Registration”) and unless the Initiating Holders shall have withdrawn such request, in which case the Company shall filenot be considered to have effected an effective registration for the purposes of this Agreement), as promptly as reasonably practicable after and such registration shall not thereafter be withdrawn or postponed pursuant to clause ‘(x)’ or ‘(y)’ of this Section 2.1(f).
(g) In connection with any Demand Registration, the execution and delivery Majority Participating Holders shall have the right to designate the lead managing underwriter (any lead managing underwriter for the purposes of this Agreement, but not later than 30 daysthe “Manager”) in connection with any underwritten offering pursuant to such registration and each other managing underwriter for any such underwritten offering; provided, that (i) in the event that Parent is the Majority Participating Holder, and a THL Party is a Participating Holder, then such managing underwriter must be reasonably satisfactory to such THL Party, and (ii) in the event that the THL Party is the Majority Participating Holder, and Parent a Participating Holder, then such managing underwriter must be reasonably satisfactory to Parent; provided, further, that, in each case, such Short-Form Registrationunderwriter is reasonably satisfactory to the Company, which approval shall constitute not be unreasonably withheld or delayed.
(h) The obligation to effect a “shelf” Demand Registration as described in this Section 2.1 shall be deemed satisfied only when a registration statement providing for covering the applicable Registrable Securities shall have become effective (unless, after effectiveness, the registration ofstatement becomes subject to any stop order, and injunction or other order of the sale on SEC or other governmental agency, in which case the obligation shall not be deemed satisfied) and, if the method of disposition is a continuous or delayed basis firm commitment underwritten public offering, all such Registrable Securities have been sold pursuant thereto.
(notwithstanding i) Notwithstanding anything to the contrary in Section 2.1(d)) ofherein, at such time as the Registrable Securities, pursuant to Rule 415 Company shall have qualified for the use of Form S-3 promulgated under the Securities Act, to permit Act or any successor form thereto and in the distribution event that the Company files a shelf registration statement under Rule 415 of the Securities Act pursuant to a Demand Registration Request and such shelf registration statement on Form S-3 becomes effective (such registration statement, a “Shelf Registration Statement”), the Initiating Holders with respect to such Demand Registration Request and the Holders of other Registrable Securities registered on such Shelf Registration Statement shall have the right at any time or from time to time to elect to sell pursuant to an underwritten offering Registrable Securities available for sale pursuant to such registration statement (“Shelf Registrable Securities”), so long as the Shelf Registration Statement remains in accordance with effect and only if the methods method of distribution elected by set forth in the Holders, including by means of shelf registration allows for sales pursuant to an underwritten offering.
(j) The Initiating Holders and such other Holders shall make such election by delivering to the Company a written request (a “Shelf Underwriting Request”) for such underwritten offering to the Company specifying the number of Shelf Registrable Securities that the Holders desire to sell pursuant to such underwritten offering (the “Shelf Underwriting”). Upon filing As promptly as practicable, but no later than five (5) Business Days after receipt of a Short-Form RegistrationShelf Underwriting Request, the Company shall give written notice (the “Shelf Underwriting Notice”) of such Shelf Underwriting Request to all other Holders of record of Shelf Registrable Securities. The Company, subject to Sections 2.3 and 2.6, shall include in such Shelf Underwriting (x) the Registrable Securities of the Initiating Holders and (y) the Shelf Registrable Securities of any other Holder of Shelf Registrable Securities which shall have made a written request to the Company for inclusion in such Shelf Underwriting (which request shall specify the maximum number of Shelf Registrable Securities intended to be disposed of by such Holder) within seven (7) days after the receipt of the Shelf Underwriting Notice. The Company shall, as expeditiously as possible (and in any event within twenty (20) days after the receipt of a Shelf Underwriting Request), but subject to Section 2.1(b), use its reasonable best efforts to keep facilitate such ShortShelf Underwriting. Notwithstanding the foregoing, if an Investor Shareholder wishes to engage in an underwritten block trade off of a Shelf Registration Statement (either through filing an automatic shelf registration statement or through a take-Form down from an already existing Shelf Registration effective with Statement), then notwithstanding the SEC at all times foregoing time periods, the Investor Shareholder only needs to notify the Company of the block trade Shelf Underwriting on the day such offering is to commence and any Short-Form Registration the Company shall be re-filed upon its expirationnotify other Holders and other Holders must elect whether or not to participate on the day such offering is to commence, and the Company shall cooperate as expeditiously as possible use its reasonable best efforts (including co-operating with such Investor Shareholder with respect to the provision of necessary information) to facilitate such shelf offering (which may close as early as three (3) business days after the date it commences), provided that in any shelf take-down by amending or supplementing the Prospectus case of such underwritten block trade, only Investor Shareholder shall have a right to notice and to participate, and provided, further, that the Investor Shareholder requesting such underwritten block trade shall use commercially reasonable efforts to work with the Company and the underwriters prior to making such request in order to facilitate preparation of Offering Documents related to the underwritten block trade. The Company shall, at the request of any Initiating Holder or any other Holder of Registrable Securities registered on such ShortShelf Registration Statement, file any prospectus supplement or, if the applicable Shelf Registration Statement is an automatic shelf registration statement (as defined in Section 2.4), any post-Form Registration as may be reasonably requested effective amendments and otherwise take any action necessary to include therein all disclosure and language deemed necessary or advisable by the Holders’ Representative or as otherwise requiredCompany to effect such Shelf Underwriting. Once a Shelf Registration Statement has been declared effective, until the Holders no longer hold of Registrable Securities (in each casemay request, notwithstanding and the Company shall be required to facilitate, an unlimited number of Shelf Underwritings with respect to such Shelf Registration Statement. Notwithstanding anything to the contrary in this Section 2.1(d2.1(j))., each Shelf Underwriting must include,
Appears in 1 contract
Sources: Registration Rights Agreement (Black Knight Financial Services, Inc.)
Demand Registrations. (ai) At Subject to Sections 2.1(b) and 2.3, at any time and from time to timetime following the six month anniversary date of the pricing date of the IPO, any Holder, or group of Holders, that hold in the Holders’ Representative aggregate 10% or more of the then outstanding shares of Common Stock, shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company toto file one or more, pursuant to the terms of this Agreementbut in no event greater than three, register registration statements under and in accordance with the provisions of the Securities Act covering all or any part of its and its Affiliates’ Registrable Securities by delivering a written request therefor to the Company specifying the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered included in such registration and the intended method of distribution therefor (a “Demand RegistrationRegistration Request”); provided. The registration so requested is referred to herein as a “Demand Registration” (with respect to any Demand Registration, howeverthe Holder(s) making such demand for registration being referred to as the “Initiating Holders”). Any Demand Registration Request may request that the Company register Registrable Securities on an appropriate form, that including a Demand Notice may only be made shelf registration statement, and, if the amount Company is a WKSI, an Automatic Shelf Registration Statement.
(ii) The Company shall give written notice (the “Demand Exercise Notice”) of such Demand Registration Request to all other Holders of Registrable Securities requested to be registered is either no later than five (i5) at least 20% Business Days after the Company’s receipt of the aggregate Demand Registration Request (or, in the case of a request for the filing of an Automatic Shelf Registration Statement, three (3) Business Days after receipt of the Demand Registration Request).
(b) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities which shall have made a written request to the Company for inclusion in such registration pursuant to Section 2.2 (which request shall specify the maximum number of Registrable Securities then held intended to be disposed of by all Holders or (ii) reasonably expected such Participating Holder on the same terms and pursuant to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected same intended method or methods of disposition as are set forth in the Demand Registration Request of the applicable Registrable Securities. Following Initiating Holder) within ten (10) days after the receipt of a the Demand Exercise Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled Company shall, subject to request no more than three Demand Registrations of the CompanySection 2.1(b), and as soon as reasonably practicable, but in no event shall later than (i) thirty (30) days following receipt of a Demand Registration Request if at such time as the Company shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto or (ii) forty-five (45) days following receipt of a Demand Registration Request, file with the SEC the form and other necessary documents, and, as soon as reasonably practicable after such filing, use its best efforts to cause to be declared effective such registration under the Securities Act (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the Securities Act if so requested and if the Company is then eligible to use such a registration) of the Registrable Securities which the Company has been so requested to register, for distribution in accordance with such intended method of distribution.
(d) Any Initiating Holder and any other Holder that has requested its Registrable Securities be included in a Demand Registration may withdraw all or a portion of its Registrable Securities from such Demand Registration at any time prior to the effectiveness of the Demand Registration. Upon receipt of a notice to such effect (A) from the Initiating Holder and all other Holders with respect to all of the Registrable Securities included by such Holders in such Demand Registration; or (B) from one or more Holders with respect to Registrable Securities held by them that would cause (i) the reasonably expected aggregate offering price to fall to $25,000,000 or below or (ii) the number of shares of Common Stock to be registered pursuant to such Demand Registration fall to below 10% of the then outstanding shares of Common stock on the date of such request, the Company shall cease all effort to secure effectiveness of the applicable Demand Registration.
(e) Notwithstanding anything to the contrary in Section 2.1(a), the Demand Registration rights granted in Section 2.1(a) are subject to the following limitations: (i) (x) the Company shall not be required to effect more than one (1) Demand Registration delivered by any specific Holder pursuant to Section 2.1(a)(i) in any six (6) month period.
period (dit being understood that a registration pursuant to a Piggyback Request by a Holder shall not constitute a Demand Registration for the purposes of this Section 2.1(e)(i)); (ii) In the event each registration in respect of a Demand RegistrationRegistration Request made by any Initiating Holder must include, in the aggregate (based on the Common Stock included in such registration by all Holders participating in such registration), Registrable Securities having an aggregate market value reasonably expected to be at least $25,000,000; and (iii) if the Board, in its good faith judgment, determines that any registration of Registrable Securities should not be made or continued because it would materially interfere with any material financing, acquisition, corporate reorganization, merger, share exchange or other transaction or event involving the Company or any Subsidiary and, in each case, any successor thereto, or because the Company does not yet have appropriate financial statements of acquired or to be acquired entities available for filing (in each case, a “Valid Business Reason”), then (x) the Company may postpone filing a registration statement relating to a Demand Registration Request until three (3) Business Days after such Valid Business Reason no longer exists, but in no event for more than 60 days after the date the Board determines a Valid Business Reason exists and (y) in case a registration statement has been filed relating to a Demand Registration Request, if the Valid Business Reason has not resulted from actions taken by the Company, any Subsidiary, and, in each case, any successor thereto, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubtmay, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, extent determined in the good faith judgment of the Board to be reasonably necessary to avoid interference with any of Directors the transactions described above, cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until three (3) Business Days after such Valid Business Reason no longer exists, but in no event for more than 60 days after the date the Board determines a Valid Business Reason exists (such period of postponement or withdrawal under this clause (iii), the “Postponement Period”). The Company shall give written notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, together with a certificate of such determination signed by the Chief Executive Officer or Chief Financial Officer of the Company, such registrationin each case, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of promptly after the occurrence thereof; provided, however, the Company shall not be permitted to postpone or withdraw a registration statement after the expiration of any imminent material transaction under consideration by Postponement Period until six (6) months after the expiration of such Postponement Period. If the Company shall give any notice of postponement or would require the disclosure withdrawal of information that has not been, and is not otherwise required any registration statement pursuant to be, disclosed to the publicthis Section 2.4(e), the premature disclosure Company shall not, during the Postponement Period, register any Common Stock, other than pursuant to a Special Registration Statement. Each Holder of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify Registrable Securities agrees that, upon receipt of any notice from the Company that it the Company has determined that the Registration Statement relating to a Demand Registration be abandoned withdraw, terminate or withdrawnpostpone amending or supplementing any registration statement pursuant to this Section 2.4(e), in which event such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Company shall promptly abandon have withdrawn or withdraw such Registration Statement.
prematurely terminated a registration statement filed under Section 2.1(a)(i) (gwhether pursuant to clause (iii) No request for registration will count for the purposes of the limitations in this Section 2.1(c2.4(e) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness or as a result of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), (D) more than 10% the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities requested covered by the Holders to be included in withdrawn or terminated registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the registration are not so included pursuant to Section 2.1(b), Company shall give any notice of withdrawal or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result postponement of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contraryregistration statement, the Company will pay all expenses shall, not later than three (3) Business Days after the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless no event later than 60 days after the date of whether the postponement or not such request counts toward the limitation set forth above.
(h) In addition to the foregoingwithdrawal), the Company will use its reasonable best efforts to remain qualified for effect the registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) Act of the Registrable Securities covered by the withdrawn or any comparable or successor form or forms or any similar short-form postponed registration statement in accordance with this Section 2.1 (“Short-Form Registration”) and unless the Initiating Holders shall have withdrawn such request, in which case the Company shall filenot be considered to have effected an effective registration for the purposes of this Agreement), as promptly as reasonably practicable after and such registration shall not thereafter be withdrawn or postponed pursuant to Section 2.1(e).
(f) In connection with any Demand Registration, the execution and delivery Majority Participating Holders shall have the right to designate the lead managing underwriter (any lead managing underwriter for the purposes of this Agreement, but not later than 30 daysthe “Manager”) in connection with any underwritten offering pursuant to such registration and each other managing underwriter for any such underwritten offering; provided, that such Short-Form Registrationunderwriter is reasonably satisfactory to the Company, which approval shall constitute not be unreasonably withheld or delayed.
(g) The obligation to effect a “shelf” Demand Registration as described in this Section 2.1 shall be deemed satisfied only when a registration statement providing for covering the applicable Registrable Securities shall have become effective (unless, after effectiveness, the registration ofstatement becomes subject to any stop order, injunction or other order of the SEC or other governmental agency, in which case the obligation shall not be deemed satisfied) and has remained effective until such time as the sale earliest to occur of (i) the date on which all of such Registrable Securities covered thereby have been disposed of in accordance with the intended methods of disposition by the Participating Holders and (ii) solely in the case of a continuous or delayed basis Demand Registration utilizing a Shelf Registration Statement (notwithstanding as defined in Section 2.1(h), the first anniversary of the date that such Registration Statement becomes effective, not including any Postponement Periods.
(h) Notwithstanding anything to the contrary herein, at such time as the Company shall have qualified for the use of Form S-3 and in Section 2.1(dthe event that the Company files a shelf registration statement under Rule 415 of the Securities Act pursuant to a Demand Registration Request and such shelf registration statement on Form S-3 becomes effective (such registration statement, a “Shelf Registration Statement”)) of, the Initiating Holders with respect to such Demand Registration Request and the Holders of other Registrable Securities registered on such Shelf Registration Statement shall have the right at any time or from time to time to elect to sell pursuant to an underwritten offering Registrable Securities available for sale pursuant to such registration statement (“Shelf Registrable Securities”), so long as the Shelf Registration Statement remains in effect and only if the method of distribution set forth in the shelf registration allows for sales pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering.
(i) The Initiating Holders and such other Holders shall make such election provided by Section 2.1(h) by delivering to the Company a written request (a “Shelf Underwriting Request”) for such underwritten offering to the Company specifying the number of Shelf Registrable Securities that the Holders desire to sell pursuant to such underwritten offering (the “Shelf Underwriting”). Upon filing As promptly as practicable, but no later than three (3) Business Days after receipt of a Short-Form RegistrationShelf Underwriting Request, the Company shall give written notice (the “Shelf Underwriting Notice”) of such Shelf Underwriting Request to all other Holders of Shelf Registrable Securities. The Company, subject to Sections 2.3 and 2.6, shall include in such Shelf Underwriting (x) the Registrable Securities of the Initiating Holders and (y) the Shelf Registrable Securities of any other Holder of Shelf Registrable Securities which shall have made a written request to the Company for inclusion in such Shelf Underwriting (which request shall specify the maximum number of Shelf Registrable Securities intended to be disposed of by such Holder) within seven (7) days after the receipt of the Shelf Underwriting Notice. The Company shall, as expeditiously as possible (and in any event within fifteen (15) days after the receipt of a Shelf Underwriting Request), but subject to Section 2.1(b), use its reasonable best efforts to keep facilitate such ShortShelf Underwriting. The Company shall, at the request of any Initiating Holder or any other Holder of Registrable Securities registered on such Shelf Registration Statement, file any prospectus supplement or, if the applicable Shelf Registration Statement is an Automatic Shelf Registration Statement (as defined in Section 2.4), any post-Form effective amendments and otherwise take any action necessary to include therein all disclosure and language deemed necessary or advisable by the Company to effect such Shelf Underwriting. Once a Shelf Registration effective with Statement has been declared effective, the SEC at all times and any Short-Form Registration shall be re-filed upon its expirationHolders may request, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related be required to facilitate, up to three (3) Shelf Underwritings with respect to such Short-Form Shelf Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding Statement. Notwithstanding anything to the contrary in this Section 2.1(d2.1(i), each Shelf Underwriting must include, in the aggregate (based on the Common Stock included in such Shelf Underwriting by all Holders participating in such Shelf Underwriting), shares of Common Stock having an aggregate market value of at least $25,000,000. The Company agrees to use commercially reasonable efforts to keep each Shelf Registration Statement continuously effective until the earliest to occur of (i) the date specified by the Initiating Holder, if any, (ii) the day after the date on which all Registrable Securities covered by such Shelf Registration Statement have been sold pursuant to such Shelf Registration Statement, and (iii) the first date on which there shall cease to be any Registrable Securities covered by such Shelf Registration Statement.
Appears in 1 contract
Sources: Registration Rights Agreement (Southeastern Grocers, Inc.)
Demand Registrations. (a) At If requested by the underwriters for any time and from time to time, the Holders’ Representative shall have the right Underwritten Offering requested by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number Holders of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offeringunder Section 5.1 or 5.2, and the managing underwriter(s) of Company shall enter into an underwriting agreement with such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in underwriters for such offering, together with any Other Securities proposed such agreement to be included by holders thereof which are entitled satisfactory in substance and form to include securities in such Registration Statement, exceeds the total number or dollar amount Holders of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution a majority of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offeringunderwriting, and to contain such number of Registrable Securities representations and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration warranties by the Company or would require the disclosure and such other terms as are generally prevailing in agreements of information that has not beentype, and is not otherwise required to be, disclosed including indemnities no less favorable to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations recipient thereof than those provided in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable 5.3. The Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included proposed to be distributed by such underwriters shall cooperate with the Company in the applicable registration relating negotiation of the underwriting agreement and shall give consideration to the reasonable suggestions of the Company regarding the form thereof. Such Holders of Registrable Securities to be distributed by such underwriters shall be parties to such requestunderwriting agreement, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any which underwriting agreement or purchase agreement entered into in connection with shall (i) contain such representations and warranties by, and the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by agreements on the applicable Holders). Notwithstanding anything to the contrarypart of, the Company will pay to and for the benefit of such Holders of Registrable Securities as are customarily made by issuers to selling stockholders in secondary underwritten public offerings and (ii) provide that any or all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition conditions precedent to the foregoing, obligations of such underwriters under such underwriting agreement also shall be conditions precedent to the obligations of such Holders of Registrable Securities. Any such Holder of Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (includingor the underwriters other than representations, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) warranties or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 daysagreements regarding such Holder, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything Holder’s title to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods such Holder’s intended method of distribution elected and any other representations required to be made by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expirationHolder under applicable law, and the Company aggregate amount of the liability of such Holder shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to not exceed such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))Holder’s net proceeds from such Underwritten Offering.
Appears in 1 contract
Sources: Shareholder Agreement (Sensus Metering Systems Inc)
Demand Registrations. (a) At Subject to the terms and conditions hereof, solely during any time and from time period when the Company is not eligible under Applicable Law to timeregister Registrable Securities on Form S-3 pursuant to Section 1.3, the Holders’ Representative any Demand Stockholders (“Requesting Stockholders”) shall have the right by delivering one or more be entitled to make a number of written notices to requests of the Company (each, a “Demand NoticeDemand”) to require set forth in Section 1.1(c) hereof for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Stockholders that equals or is greater than the Registrable Amount (a “Demand Registration”). Thereupon the Company towill, pursuant subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register under and by the Requesting Stockholders for disposition in accordance with the provisions intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which the Securities Act Company has been requested to register pursuant to Section 1.1(b), but subject to Section 1.1(g); and
(iii) all shares of Company Common Stock which the number Company may elect to register in connection with any offering of Registrable Securities owned by Holders pursuant to this Section 1.1, but subject to Section 1.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and requested by such Demand Notice the additional shares of Company Common Stock, if any, to be so registered registered.
(a “b) A Demand Registration”); provided, however, that a Demand Notice may only be made if shall specify (i) the amount aggregate number of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or in such Demand Registration, (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected intended method or methods of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the applicable Registrable SecuritiesRequesting Stockholder(s). Following Within three (3) Business Days after receipt of a Demand NoticeDemand, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days give written notice of such Demand to all Other Holders. The Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by which the Company of such Demand Notice has received a written request for inclusion therein from the Holder thereof within ten (10) days after the Company’s notice required by this paragraph has been given, subject to paragraph (e) Section 1.1(g). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2.11.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively Requesting Stockholders shall be entitled have the right to request only a total of up to three (3) Demand Registrations; provided that no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration may be made in any six month four (4)-month period.
(d) In the event of . A Demand Registration shall not be deemed to have been effected and shall not count as a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement (i) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least one year after the effective date thereof hundred eighty (180) days or such shorter period in which all Registrable Securities included in such Demand Registration Statement have actually been sold. For sold thereunder (provided that such period shall be extended for a period of time equal to the period the Holder of Registrable Securities refrains from selling any securities included in such registration statement at the request of the Company or the lead managing underwriter(s) pursuant to the provisions of this Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to one hundred eighty (180) days after effectiveness, to any stop order, injunction or other order or requirement of the Commission or other Governmental Authority, other than by reason of any act or omission by the applicable Selling Stockholders.
(d) Demand Registrations shall be on such appropriate registration form of the Commission as shall be selected by the Company and reasonably acceptable to the Requesting Stockholders.
(e) The Company shall not be obligated to (i) subject to Section 1.1(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration for a period longer than one hundred eighty (180) days or (ii) effect any Demand Registration (A) within four months of a “firm commitment” Underwritten Offering in which all Demand Stockholders were offered “piggyback” rights pursuant to Section 1.2 (subject to Section 1.2(b)) and at least 90% of the number of Registrable Securities requested by such Requesting Stockholders to be included in such Demand Registration were included and sold or (B) within four months of the completion of any other Demand Registration (including, for the avoidance of doubt, the foregoing sentence is not intended any Underwritten Offering pursuant to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form any Shelf Registration contemplated by Section 2.1(h) as required by Section 2.1(hStatement).
(ef) The Company shall be entitled to postpone (but not more than once in upon written notice to the Requesting Stockholders and any six-month periodOther Holders whose Registrable Securities are covered by such Demand pursuant to Section 1.1(b), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), ) the filing or initial the effectiveness ofof a registration statement for any Demand Registration, or suspend the use ofavailability of a registration statement and the prospectus contained therein for sales hereunder, in the event of a Demand Registration Statement if Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period, the Company delivers shall deliver to the Holders’ Representative Requesting Stockholders requesting registration and any Other Holders whose Registrable Securities are covered by such Demand pursuant to Section 1.1(b) a certificate signed by both either the Chief Executive Officer and Chief Financial Officer chief executive officer, the chief financial officer or the general counsel of the Company certifying that, in the good faith judgment of the Board Company, the conditions described in the definition of Directors Blackout Period are met. The Company shall promptly provide written notice to the Requesting Stockholders of the Companyexpiration of any Blackout Period.
(g) If, in connection with a Demand Registration or Shelf Offering that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its (their) opinion, the inclusion of all of the securities sought to be registered in connection with such registration, offering or use Demand Registration would reasonably be expected to materially adversely affect or materially interfere with the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first pro rata among the Holders (including the Sponsors, as applicable) that have requested to participate in such Demand Registration based on the relative number of Registrable Securities then held by each such Holder (provided that any bona fide Registrable Securities thereby allocated to a Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Holders in like manner); (ii) second, securities the Company proposes to sell; and imminent material financing (iii) third, all other securities of the Company duly requested to be included in such registration statement by other persons, pro rata on the basis of the amount of such other securities requested to be included or any imminent material transaction under consideration such other allocation method determined by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(fh) The Holders’ Representative shall have the right to notify the Company Any time that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawnShelf Offering involves an Underwritten Offering, in Requesting Stockholders shall select the investment banker(s) and manager(s) that will serve as managing underwriters (including which event the Company shall promptly abandon such managing underwriters will serve as lead or withdraw such Registration Statement.
(gco-lead) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior and underwriters with respect to the effectiveness offering of such Registrable Securities; provided that such investment banker(s) and manager(s) shall be subject to the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to prior written consent of the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b)unreasonably withheld, conditioned or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth abovedelayed.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Sources: Registration Rights Agreement (Intercontinental Exchange, Inc.)
Demand Registrations. (a) At Subject to the terms and conditions hereof, solely if the Company has failed to file the Shelf Registration Statement or maintain its effectiveness as provided in Section 1.3, any time and from time Demand Shareholders (“Requesting Shareholders”) shall be entitled to time, the Holders’ Representative shall have the right by delivering one or more make written notices to requests of the Company (each, a “Demand NoticeDemand”) for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders (such amount, in the case where SL Sponsor is a Requesting Shareholder, to require include a number of Registrable Securities held by the Escrow Agent determined pursuant to the Management Shareholders Agreement) that equals or is greater than the Registrable Amount (a “Demand Registration”). Thereupon the Company towill, pursuant subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register under and by the Requesting Shareholders for disposition in accordance with the provisions intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which the Securities Act Company has been requested to register pursuant to Section 1.1(b), but subject to Section 1.1(h); and
(iii) all Company Shares which the number Company may elect to register in connection with any offering of Registrable Securities owned by Holders pursuant to this Section 1.1, but subject to Section 1.1(h), all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and requested by such Demand Notice the additional Company Shares, if any, to be so registered registered.
(a “b) A Demand Registration”); provided, however, that a Demand Notice may only be made if shall specify (i) the amount aggregate number of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or in such Demand Registration, (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected intended method or methods of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the applicable Registrable SecuritiesRequesting Shareholder(s). Following Within three (3) Business Days after receipt of a Demand NoticeDemand, the Company shall file, as promptly as reasonably practicable, give written notice of such Demand to all Other Holders of Registrable Securities. The Company shall include (but not later than, 60 days only on a pro rata basis among the Requesting Shareholder and the Other Holders that have requested to participate in such Demand Registration based upon the relative number of Registrable Shares then held by each such Requesting Shareholder and Other Holders) in the Demand Registration covered by such Demand all Registrable Securities with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by which the Company of such Demand Notice has received a written request for inclusion therein from the Other Holders thereof within five (5) days after the Company’s notice required by this paragraph has been given, subject to paragraph (e) Section 1.1(h). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2.11.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively During each fiscal year of the Company, SL Sponsor shall have the right to request up to nine (9) Demand Registrations and/or deliver Take-Down Notices pursuant to Section 1.3, in the aggregate, and FP/TP Sponsor shall have the right to request up to three (3) Demand Registrations and/or deliver Take-Down Notices pursuant to Section 1.3, in the aggregate (of which only two (2) Take-Down Notices may be for Marketed Underwritten Shelf Offerings). Notwithstanding the foregoing, the FP/TP Sponsor shall not be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, deliver a Take-Down Notice or a Piggyback Notice or sell Registrable Securities pursuant to a registration statement, at any time when the SL Sponsor is restricted from selling Registrable Securities pursuant to Clause 6.2 or Clause 6.9 of the Management Shareholders Agreement; provided, however, that this sentence shall not be applicable in so far as it relates to Clause 6.9 of the Management Shareholders Agreement if the FP/TP Sponsor (or Far Point or Third Point individually if it is requesting a Demand Registration, delivering a Take-Down Notice or otherwise selling Registrable Securities pursuant to a registration statement that in each case would not involve sales by the other) does not possess material nonpublic information with respect to the Company or its securities and has no representative on the Company Board. A Demand Registration shall use its reasonable best efforts not be deemed to maintain the continuous effectiveness of the applicable have been effected and shall not count as a Demand Registration Statement (A) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least one year after the effective date thereof hundred eighty (180) days or such shorter period in which all Registrable Securities included in such Demand Registration Statement have actually been sold. For sold thereunder (provided that such period shall be extended for a period of time equal to the avoidance period the Holder of doubt, Registrable Securities refrains from selling any securities included in such registration statement at the foregoing sentence is not intended to limit the obligation request of the Company or the lead managing underwriter(s) pursuant to maintain the continuous effectiveness provisions of this Agreement) or (B) if, after it has become effective, such Demand Registration becomes subject, prior to one hundred eighty (180) days after effectiveness, to any stop order, injunction or other order or requirement of the Short-Commission or other Governmental Authority, other than by reason of any act or omission by the applicable Selling Stockholders.
(d) Demand Registrations shall be on Form Registration contemplated F-1 or Form F-3 if the Company is eligible under Applicable Law to register Registrable Securities on Form F-3 or, if the Company reasonably believes another registration form of the Commission would be more appropriate, such other appropriate registration form of the Commission as shall be selected by Section 2.1(h) as required by Section 2.1(h)the Company and reasonably acceptable to the Requesting Shareholders.
(e) The Company shall not be obligated to (i) subject to Section 1.1(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration for a period longer than one hundred eighty (180) days or (ii) effect any Demand Registration (A) within forty-five (45) days of a “firm commitment” Underwritten Offering in which all Demand Shareholders were offered “piggyback” rights pursuant to Section 1.2 (subject to Section 1.2(b)) and at least 90% of the number of Registrable Securities requested by such Demand Shareholders to be included in such Underwritten Offering were included and sold or (B) during the first year after the Closing Date, within three (3) months of the completion of any other Demand Registration.
(f) The Company shall be entitled to postpone (but not more than once in upon written notice to the Requesting Shareholders and any six-month periodOther Holders whose Registrable Securities are covered by such Demand pursuant to Section 1.1(b), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), ) the filing or initial the effectiveness of, or suspend the use of, of a registration statement for any Demand Registration Statement if in the event of a Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period, the Company delivers shall deliver to the Holders’ Representative Requesting Shareholders requesting registration and any Other Holders whose Registrable Securities are covered by such Demand pursuant to Section 1.1(b) a certificate signed by both either the Chief Executive Officer and Chief Financial Officer chief executive officer or the chief financial officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing the conditions described in the definition of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration StatementBlackout Period are met.
(g) No request for registration will count for If the purposes Majority in Interest of the limitations in Section 2.1(c) if: (A) Requesting Shareholders so advise the Holders’ Representative determines in good faith to withdraw Company as part of their Demand Registration that the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% offering of the Registrable Securities pursuant to such Demand Registration shall be in the form of an Underwritten Offering, then the right of such Requesting Shareholder or Other Holders that have requested to include Registrable Securities in such Registration shall be conditioned upon such Requesting Shareholder’s participation in such Underwritten Offering and the inclusion of such Requesting Shareholder’s Registrable Securities in such Underwritten Offering to the extent provided herein (for the avoidance of doubt, in the event that SL Sponsor acts as Requesting Shareholder on behalf of the Escrow Agent, including the Registrable Securities held by the Escrow Agent and included in the applicable registration relating Underwritten Offering in accordance with the Management Shareholders Agreement). All such Requesting Shareholders and Other Holders (including the Escrow Agent and, if required, Management Shareholders) proposing to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the distribute their Registrable Securities requested by through an Underwritten Offering under this Section 1.1(g) shall enter into an underwriting agreement in customary form with the Holders to be included in the registration are not so included Underwriter(s) selected for such Underwritten Offering pursuant to Section 2.1(b1.1(i), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoingIf, in connection with a Demand Registration or Shelf Offering that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company will use that, in its reasonable best efforts (their) opinion, the inclusion of all of the securities sought to remain qualified for be registered in connection with such Demand Registration or Shelf Offering would adversely affect the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first pro rata among the Holders that have requested to participate in such Demand Registration or Shelf Offering based on Form S-3 the relative number of Registrable Shares then held by each such Holder (including, without limitationin the event that SL Sponsor has included Registrable Securities held by the Escrow Agent, such Registrable Shares, as if availablethey were held by SL Sponsor); (ii) second, an automatic shelf other securities of the Company duly requested to be included in such registration statement for by other persons, pro rata on the basis of the amount of such other securities requested to be included or such other allocation method determined by the Company; and (iii) third, securities the Company proposes to sell.
(i) Any time that a “well-known seasoned issuer” as defined Demand Registration or Shelf Offering involves an Underwritten Offering, the Majority in Rule 405 under Interest of the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”Requesting Shareholders shall select the investment banker(s) and the Company shall file, manager(s) that will serve as promptly managing underwriters (including which of such managing underwriters will serve as reasonably practicable after the execution lead or co-lead) and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, underwriters and the sale on a continuous or delayed basis (notwithstanding anything their respective economics with respect to the contrary in Section 2.1(d)) of, the offering of such Registrable Securities, pursuant ; provided that such investment banker(s) and manager(s) shall be subject to Rule 415 under the Securities Act, to permit the distribution prior written consent of the Registrable Securities in accordance with the methods of distribution elected by the HoldersCompany, including by means of an underwritten offering. Upon filing a Short-Form Registrationnot to be unreasonably withheld, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending conditioned or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))delayed.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Far Point Acquisition Corp)
Demand Registrations. (a) At any time after the earlier of (a) April 1, 2003, or (b) such time as the Company's Common Stock is traded on the NASDAQ, AMEX, NYSE or like stock exchange with quantitative and from time to timequalitative listing requirements, the Holders’ Representative Holder may request that the Company register any Registrable Securities. The Holder shall be entitled to one (1) such demand registration per twelve (12) month period (i.e. all registrations must be at least 12 months plus one day apart). The Holder shall have the right by delivering one or more written notices to demand that the Company (eachsatisfy its obligations pursuant to this Section 3 by use of the SEC's Form S-8, a “Demand Notice”) or any successor form thereto, subject to require applicable law, or such other SEC registration statement form as Holder may choose to request, including Form S-3 or any successor form thereto, or if Form S-3 is not available, Form S-1 or Form S-2, or any successor form thereto. Holder shall notify the Company to, pursuant in writing that it intends to the terms of this Agreement, register under and in accordance with the provisions offer or cause to be offered for public sale all or any portion of the Securities Act the number of Registrable Securities owned by Holders Shares, and requested by such Demand Notice to be so registered within ten (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i10) at least 20% days of the aggregate number receipt after such notice.
(b) Upon written request of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, Holder the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect will use its best efforts to cause all or any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale part of the Registrable Securities that may be requested by Holder to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective registered under the Securities Act as promptly expeditiously as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holderpossible.
(c) The Holders collectively If Holder intends to distribute the Registrable Securities covered by its request by means of an underwriting, it shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall so advise the Company be required to effect more than one Demand Registration in any six month periodas part of its request.
(d) In Notwithstanding the event of a Demand Registrationforegoing, the Company shall use its reasonable best efforts not be obligated to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness ofeffect, or suspend the use ofto take any action to effect, a Demand Registration Statement any registration pursuant to this Section 3: (i) if the Company delivers shall furnish to the Holders’ Representative Holder a certificate signed by both the Chief Executive Officer and Chief Financial Officer President of the Company certifying that, stating that in the good faith judgment of the Board of Directors of the Company, such registration, offering or use it would reasonably be expected seriously detrimental to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by and its stockholders for such registration statement to be effected at such time, and that it is essential to the Company or would require to defer the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawnfiling, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for have the purposes right to defer the filing of the limitations 3 registration statement for a period of not more than 120 days after receipt of the request of the Holder under this Section 3; provided, however that the Company shall not utilize this right more than once in Section 2.1(cany 12 month period; or (ii) if: (A) during the Holders’ Representative determines in good faith to withdraw period starting with the proposed registration date 60 days prior to the effectiveness Company's good faith estimate of filing of, and ending on a date 180 days after the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to effective date of, a registration statement filed under the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC Securities Act (other than a registration relating solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included securities to participants in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)stock plan).
Appears in 1 contract
Demand Registrations. (ai) At any time and from time to timeWithin ten (10) days after receipt of a request for a Demand Registration, the Holders’ Representative Company shall give written notice (the "Notice") of such request to all the Holders (other than the Initiating Holder(s)). Each of the Holders other than the Initiating Holder(s) shall, subject to the other provisions of this Section 2.3, upon receipt of written request therefor within ten (10) days after the Notice is given (the "Election Period"), have the right by delivering one or more written notices to the Company (each, a “include in such Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act Registration the number of Registrable Securities owned by Holders and requested registrable by such Holder pursuant to Section 2.2.1 of this Agreement as of the time such Notice is made (the "Demand Notice Piggyback Shares").
(ii) Registration of the Demand Piggyback Shares requested to be so registered by any Holder shall be subject to the following conditions: (A) in respect of a “registration relating to any Underwritten Public Offering, (x) compliance with the "cutback" provisions contained in Section 2.3.2, (y) acceptance by such Holder of the timing and terms and conditions of the subject Underwritten Public Offering (as evidenced by each such Holder and, if applicable, any other participating member of the Istithmar Group, becoming a party to the applicable underwriting agreement) and (z) the Underwriter being of the opinion that the sale of Shares by such Holder and, if applicable, any other participating member of the Istithmar Group, would not have a material and adverse effect on the market for the Shares and, if applicable, any other securities issued by the Company.
(iii) In the event that the Initiating Holder(s) requests the Company to withdraw a Demand Registration”), Holders who shall have elected to register Demand Piggyback Shares as of the date of such withdrawal shall have the right, upon one (1) business day's prior written notice to the Company, to pursue such registration; provided, however, that a Demand Notice may only the requirements of Section 2.2.1 shall otherwise be made if satisfied.
(iv) Subject to the amount of Registrable Securities requested to be registered is either foregoing and Section 2.3.2, (iA) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by include in such registration all Registrable Securities that the Company of such Demand Notice has received written requests for inclusion therein within the Election Period and (subject to paragraph (eB) of this Section 2.1)thereafter, a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event case of a Demand Registration, the Company may elect to include in such registration additional Shares issued by the Company. All requests made pursuant to this Section 2.3.1 shall use its reasonable best efforts to maintain specify the continuous effectiveness aggregate number of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been soldto be registered. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of no Person other than a Holder or the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a include Shares in any Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery 2.2.1 of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate not include Shares of any Person other than a Holder or the Company in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))Demand Registration.
Appears in 1 contract
Demand Registrations. (a) At (i) Subject to Sections 2.1(b) and 2.3, at any time and from time to timetime after the closing of the IPO, the Holders’ Representative PVF shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file one or more registration statements under and in accordance with the provisions of the Securities Act covering all or any part of its Registrable Securities by delivering a written request therefor to the Company specifying the number of Registrable Securities owned by Holders and requested by such Demand Notice to be included in such registration and the intended method of distribution thereof. Any such request by PVF pursuant to this Section 2.1(a)(i) is referred to herein as a “Demand Registration Request,” and the registration so registered (requested is referred to herein as a “Demand Registration” (with respect to any Demand Registration, PVF shall be referred to herein as the “Initiating Holder”); provided. As promptly as practicable, however, that but no later than five (5) Business Days after receipt of a Demand Notice may only be made if Registration Request, the amount Company shall give written notice (the “Demand Exercise Notice”) of such Demand Registration Request to all other Holders of record of Registrable Securities, if any.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities requested to be registered is either (i) at least 20% of the aggregate Initiating Holder and (y) the Registrable Securities of any other Holder of Registrable Securities, if any, which shall have made a written request to the Company for inclusion in such registration pursuant to Section 2.2 (which request shall specify the maximum number of Registrable Securities then held intended to be disposed of by all Holders or such Participating Holder) within twenty (ii20) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify days after the expected method or methods of disposition receipt of the applicable Registrable Securities. Following receipt Demand Exercise Notice (or fifteen (15) days if, at the request of a Demand Noticethe Initiating Holder, the Company shall filestates in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form S-3).
(iii) The Company shall, as promptly expeditiously as reasonably practicablepossible, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.12.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause (x) effect such Registration Statement to be declared effective registration under the Securities Act (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the Securities Act if so requested and if the Company is then eligible to use such a registration) of the Registrable Securities which the Company has been so requested to register, for distribution in accordance with such intended method of distribution, including a distribution to, and resale by, the members or partners of a Holder (a “Partner Distribution”) and (y) if requested by PVF, obtain acceleration of the effective date of the registration statement relating to such registration.
(iv) Notwithstanding anything contained herein to the contrary, the Company shall, at the request of any Holder seeking to effect a Partner Distribution, file any prospectus supplement or post-effective amendments and otherwise take any action necessary to include therein all disclosure and language deemed necessary or advisable by such Holder if such disclosure or language was not included in the initial registration statement, or revise such disclosure or language if deemed necessary or advisable by such Holder, to effect such Partner Distribution.
(v) Notwithstanding anything to the contrary in this Section 2.1(a), PVF shall have the right to require the Company to include all or part of its Registrable Securities in the registration statement filed in connection with the IPO. PVF may make the request referred to in this Section 2.1(a)(v) at any time prior to such registration statement being declared effective by the SEC by providing written notice of such request to the Company, which notice shall include the number of Registrable Securities to be included in such Registration Statement. Any such request made pursuant to this Section 2.1(a)(v) shall be treated in the same manner as promptly as practicable after a Demand Registration made hereunder, and PVF shall be entitled to all the filing thereofbenefits and protections of this Agreement, including but not limited to, Section 2.9 hereof, in connection with the registration of its Registrable Securities in the IPO pursuant to this Section 2.1(a)(v).
(b) No securities shall be included under any Notwithstanding anything to the contrary in Section 2.1(a), the Demand Registration Statement related rights granted in Section 2.1(a) are subject to an underwritten offering without the written consent of following limitations: (i) the Holders’ Representative, except Registrable Securities requested Company shall not be required to be included therein cause a registration pursuant to Section 2.1(a). Subject 2.1(a)(i) to be declared effective within a period of one hundred and eighty (180) days after the effective date of any other registration statement of the Company filed pursuant to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such HolderAct; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company shall not be required to effect more than one six (6) Demand Registration Registrations for PVF; and (iii) if the Board, in its good faith judgment, determines that any six month period.
(d) In the event registration of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is should not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing made or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use continued because it would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of financing, acquisition, corporate reorganization or merger or other transaction or event involving the Company or any imminent material transaction under consideration by of its subsidiaries (a “Valid Business Reason”), then (x) the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement may postpone filing a registration statement relating to a Demand Registration Request until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than three (3) months after the date the Board determines a Valid Business Reason exists and (y) in case a registration statement has been filed relating to a Demand Registration Request, if the Valid Business Reason has not resulted from actions taken by the Company, the Company may cause such registration statement to be abandoned withdrawn and its effectiveness terminated or withdrawnmay postpone amending or supplementing such registration statement until five (5) Business Days after such Valid Business Reason no longer exists, but in which no event for more than three (3) months after the date the Board determines a Valid Business Reason exists (such period of postponement or withdrawal under this clause (iii), the “Postponement Period”); and the Company shall promptly abandon give written notice of its determination to postpone or withdraw such Registration Statement.
(g) No request for a registration will count for the purposes statement and of the limitations fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in Section 2.1(ceach case, promptly after the occurrence thereof; provided, however, the Company shall not be permitted to postpone or withdraw a registration statement after the expiration of any Postponement Period until nine (9) if: months after the expiration of such Postponement Period. If the Company shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (Aiii) above, the Holders’ Representative determines Company shall not, during the period of postponement or withdrawal, register any Common Equity, other than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in good faith effect). Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw the proposed any registration prior statement pursuant to the effectiveness clause (iii) above, such Holder will discontinue its disposition of the Registration Statement relating Registrable Securities pursuant to such request due to marketing conditions or regulatory reasons relating to registration statement and, if so directed by the Company, will deliver to the Company (Bat the Company’s expense) the Registration Statement relating to all copies, other than permanent file copies, then in such request is not declared effective within 60 days Holder’s possession of the date prospectus covering such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included that was in effect at the applicable time of receipt of such notice. If the Company shall have withdrawn or prematurely terminated a registration relating statement filed under Section 2.1(a)(i) (whether pursuant to such request, such registration is adversely affected by clause (iii) above or as a result of any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), (D) more than 10% the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities requested covered by the Holders to be included in withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the registration are not so included pursuant to Section 2.1(b), Company shall give any notice of withdrawal or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result postponement of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contraryregistration statement, the Company will pay all expenses shall, not later than five (5) Business Days after the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in accordance with Section 2.8no event later than three (3) in connection with any request for registration pursuant to this Agreement regardless months after the date of whether the postponement or not such request counts toward the limitation set forth above.
(h) In addition to the foregoingwithdrawal), the Company will use its reasonable best efforts to remain qualified for effect the registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the methods Initiating Holder shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of distribution elected by the Holdersthis Agreement), including by means and such registration shall not be withdrawn or postponed pursuant to clause (iii) of an underwritten offering. Upon filing a Short-Form Section 2.1(b) above.
(c) In connection with any Demand Registration, the Company shall use its reasonable best efforts have the right to keep designate the lead managing underwriter (any lead managing underwriter for the purposes of this Agreement, the “Manager”) in connection with such Short-Form Registration effective with the SEC at all times registration and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to each other managing underwriter for such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (registration; provided that in each case, notwithstanding anything each such underwriter is reasonably satisfactory to the contrary in Section 2.1(d))PVF.
Appears in 1 contract
Demand Registrations. (a) At Subject to the conditions of this Section 2, any time and from time to time, member of the Holders’ Representative shall have the right by delivering one or more written notices Holder Group may send to the Company a written request on behalf of all Holders (each, a “Demand Notice”) to require that the Company tofile a registration statement (including, pursuant if the Company is so eligible, a demand to file a Shelf Registration Statement) under the terms Securities Act, which request shall specify the intended method of this Agreement, register under and in accordance with the provisions distribution of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 millionCommon Stock. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following Upon receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall then use its reasonable best efforts to file, as expeditiously as reasonably possible, a registration statement in respect of the requested distribution that includes all Registrable Securities the Holders request to be registered and will use reasonable best efforts to cause such Registration Statement registration statement to be declared effective under the Securities Act as promptly thereafter as practicable after the filing thereofis reasonably possible.
(b) No securities shall be included under Subject to the conditions of this Section 2, any Demand member of the Holder Group may, at any time and from time to time after a Shelf Registration Statement related in respect of Registrable Securities has been declared effective, send to the Company a written request on behalf of all Holders (a “Takedown Notice”) to sell in an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any (including an “at-the-market offering” or a “registered direct offering”) all or a portion of the Registrable Securities registered that are included in the Shelf Registration Statement (a “Shelf Takedown”). The Company shall then use its reasonable best efforts to cooperate with the Holders and the underwriter(s) to effect the Shelf Takedown, including taking the actions contemplated by Section 2(c) and Section 5.
(c) If the Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to a Demand Registration are this Section 2 and the Company shall include such information in its written notice to be sold Holders referred to in a firm commitment underwritten Section 2(a) or Section 2(b), as applicable, and shall use their reasonable best efforts to cooperate with the Holders and the underwriters selected by the Holders in effecting that offering, including taking the actions contemplated by this Section 2(c) and Section 5. The Company and all Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with an underwriter or underwriters of nationally recognized standing selected for such underwriting by the Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2, if the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion Company that the total number or dollar amount of Registrable Securities proposed shares of Common Stock sought to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, offered exceeds the total number or dollar amount of such securities that can be sold into the market without having an adverse effect on adversely affecting the amount, offering (including with regard to price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities), then there shall the number of shares of Common Stock to be included in such offering the number or dollar underwriting shall be reduced to an amount of Registrable Securities and such Other Securities that in the opinion of deemed satisfactory by such managing underwriter(s) can be sold without so adversely affecting such offering), and the Company shall include in such number registration shares of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
Common Stock in the following priority: (i) first, the Registrable Securities for which inclusion shares of Holders participating in such demand offering was the requested by the Holdersregistration, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned shares to be sold by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company and (iii) third, any shares to be required sold by any other stockholder exercising piggyback registration rights with respect to effect more than one Demand Registration in any six month periodsuch Shares.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall not be entitled required to postpone effect a registration or a Shelf Takedown pursuant to this Section 2:
(but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers i) prior to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer earlier of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) one year following the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness date of the Registration Statement relating to such request due to marketing conditions this agreement or regulatory reasons relating to the Company, (B) the Registration Statement relating to first date on which the Average Closing Price either exceeds $10.50 per share or is less than $3.00 per share;
(ii) during any Blackout Period; provided, that the Company provides the Holders with written notice of such request is not declared effective within 60 days of Blackout Period;
(iii) if the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior expected price to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included public in the registration are not so included pursuant to Section 2.1(b)or Shelf Takedown is less than $10 million;
(iv) within three months after the effectiveness of an earlier demand registration or piggy-back registration or “pricing” of any Shelf Takedown, or in each case that was an Effective Registration; or
(Ev) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result if within three business days of receipt of a material default Demand Notice or breach thereunder by the applicable Holders). Notwithstanding anything to the contrarya Takedown Notice, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition gives written notice to the foregoing, Holders of the Company will use its reasonable best efforts Company’s intention to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for effect a “well-known seasoned issuer” as defined in Rule 405 under Piggyback Registration within the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than next succeeding 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Sources: Registration Rights Agreement (Red Lion Hotels CORP)
Demand Registrations. (a) At any time and from time to timeafter the expiration of 180 days after the closing of a Public Offering, one or more Holders representing in the aggregate in excess of 30% of the Registrable Shares then held by all Holders, may request, in writing, that the Company file a Registration Statement under the Securities Act. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Holders’ Representative . Each Holder shall have the right right, by delivering one or more giving written notices notice to the Company within 15 days after the Company provides its notice, to elect to have included in such registration such of its Registrable Shares as such Holder may request in such notice of election. Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration under the Securities Act of all Registrable Shares which the Company has been requested so to register.
(eachb) If the Holders initiating the registration request hereunder (the "Initiating Holders") intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a “Demand Notice”part of their request made pursuant to this Section 2 and the Company shall include such information in the written notice referred to in Section 2(a) hereof. In such event, the right of any Holder to include his or its Registrable Shares in such registration shall be conditioned upon the inclusion of such Holder's Registrable Shares in the underwriting. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 2(b), if the managing underwriter with respect to the proposed offering advises the Holders proposing to sell Registrable Shares that would otherwise be included in the underwriting that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Shares that may be included in the underwriting shall be allocated among all such Holders, including the Initiating Holders, in proportion (as nearly as practicable) to require the amount of Registrable Shares proposed to be included in the Registration Statement by each such Holder.
(c) The Company shall not be required to effect more than three registrations of Registrable Shares pursuant to Section 2(a) hereof.
(d) At the time of any request to register Registrable Shares pursuant to this Section 2, the Company tomay at its option direct that such request be delayed for a period not in excess of three months if, in the opinion of the Company's Board of Directors, the filing of such Registration Statement would adversely affect the Company's ability to complete any pending or proposed material transaction, provided that such right to delay a request may be exercised by the Company not more than once in any twelve-month period.
(e) The Initiating Holders of any Registration Statement filed pursuant to this Section 2 shall designate the terms method of distribution of the Registrable Shares. The Initiating Holders may designate the managing underwriter (who shall be the lead underwriter) for any Registration Statement filed pursuant to this AgreementSection, register under provided such designee is reasonably satisfactory to the Company, and the Company may designate a co-managing underwriter in such offering, provided such designee is reasonably satisfactory to Holders representing a majority of the Registrable Shares to be included in the Registration. The Company shall afford the underwriters, their accountants and attorneys full access to its personnel and offices for the purpose of confirming the accuracy and completeness of the Registration Statement, in accordance with the provisions of Section 4 hereof.
(f) If in the Securities Act opinion of the number underwriters selected to manage the underwriting, more Common Stock could be sold than is represented by the Registrable Shares included in the registration without adversely affecting the price per share, or with the consent of Holders representing two-thirds of the Registrable Securities owned by Holders and requested by such Demand Notice Shares to be included, the Company shall be entitled to expand the offering to include newly issued Common Stock or Common Stock held by third parties. If the Common Stock so registered (included represents more than half of all Common Stock to be offered in the Registration Statement, the registration may, at the option of the Initiating Holders, be deemed to be an incidental registration under Section 3, rather than a “Demand Registration”); providedrequired registration under this Section 2, however, that a Demand Notice may only be made and the registration rights of the Holders provided in Section 2(c) shall remain fully available as if the amount of Registrable Securities requested registration had originated under Section 3 rather than under Section 2.
(g) Notwithstanding anything set forth elsewhere in this Section 2, the Company shall have no responsibility to be registered is either cause a Registration Statement to become effective (i) at least 20% a time when it would be required under the rules and regulations of the aggregate number of Registrable Securities then held by all Holders or and Exchange Commission to prepare and file audited financial statements for a period other than a completed fiscal year, (ii) reasonably expected when the Company would be required to generate aggregate gross proceeds on sale (prepare and file audited financial statements for a completed fiscal year prior to deducting underwriting discounts and commissions and offering expenses90 days following the end of such year, or (iii) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition within 180 days of the applicable Registrable Securities. Following receipt effective date of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt prior Registration Statement filed by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by in which the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofcould participate.
(bh) No securities shall be included under If any Demand Registration Statement related prepared pursuant to an underwritten offering without the written consent this Section 2 is not filed or does not become effective as a result of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any decision of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offeringInitiating Holders or any underwriter designated by them, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain prepare and file a Registration Statement at the continuous effectiveness request of such Initiating Holders shall nevertheless have been satisfied; provided that if the Short-Form decision not to file the Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled Statement or to postpone (but not more than once in any six-month period), for withdraw the Registration Statement prior to it becoming effective is the result of a reasonable period of time not in excess of 60 days (and not for periods exceeding, material adverse change in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors business of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing the registration rights of the Company or any imminent material transaction under consideration Holders provided in Section 2(c) shall remain fully available as if the registration had not been requested by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Initiating Holders’ Representative shall have the right to notify the Company that it has determined that . If the Registration Statement relating otherwise fails to a Demand Registration be abandoned or withdrawnbecome effective, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes rights of the limitations Holders provided in Section 2.1(c2(c) if: (A) remain fully available as if the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is had not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities been requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Initiating Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Sources: Registration Rights Agreement (State Communications Inc)
Demand Registrations. (a) At Subject to the terms and conditions hereof, solely if the Company has failed to file the Shelf Registration Statement or maintain its effectiveness as provided in Section 1.3, any time and from time Demand Shareholders (“Requesting Shareholders”) shall be entitled to time, the Holders’ Representative shall have the right by delivering one or more make written notices to requests of the Company (each, a “Demand NoticeDemand”) for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders (such amount, in the case where SL Sponsor is a Requesting Shareholder, to require include a number of Registrable Securities held by the Escrow Agent determined pursuant to the Management Shareholders Agreement) that equals or is greater than the Registrable Amount (a “Demand Registration”). Thereupon the Company towill, pursuant subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register under and by the Requesting Shareholders for disposition in accordance with the provisions intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which the Securities Act Company has been requested to register pursuant to Section 1.1(b), but subject to Section 1.1(h); and
(iii) all Company Shares which the number Company may elect to register in connection with any offering of Registrable Securities owned by Holders pursuant to this Section 1.1, but subject to Section 1.1(h), all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and requested by such Demand Notice the additional Company Shares, if any, to be so registered registered.
(a “b) A Demand Registration”); provided, however, that a Demand Notice may only be made if shall specify (i) the amount aggregate number of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or in such Demand Registration, (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected intended method or methods of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the applicable Registrable SecuritiesRequesting Shareholder(s). Following Within three (3) Business Days after receipt of a Demand NoticeDemand, the Company shall file, as promptly as reasonably practicable, give written notice of such Demand to all Other Holders of Registrable Securities. The Company shall include (but not later than, 60 days only on a pro rata basis among the Requesting Shareholder and the Other Holders that have requested to participate in such Demand Registration based upon the relative number of Registrable Shares then held by each such Requesting Shareholder and Other Holders) in the Demand Registration covered by such Demand all Registrable Securities with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by which the Company of such Demand Notice has received a written request for inclusion therein from the Other Holders thereof within five (5) days after the Company’s notice required by this paragraph has been given, subject to paragraph (e) Section 1.1(h). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2.11.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations During each fiscal year of the Company, SL Sponsor shall have the right to request up to nine (9) Demand Registrations and/or deliver Take-Down Notices pursuant to Section 1.3, in the aggregate, and TP Sponsor shall have the right to request up to three (3) Demand Registrations and/or deliver Take-Down Notices pursuant to Section 1.3, in no event shall the Company aggregate (of which only two (2) Take-Down Notices may be required to effect more than one for Marketed Underwritten Shelf Offerings). A Demand Registration in any six month period.
(d) In the event of shall not be deemed to have been effected and shall not count as a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement (A) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least one year after the effective date thereof hundred eighty (180) days or such shorter period in which all Registrable Securities included in such Demand Registration Statement have actually been sold. For sold thereunder (provided that such period shall be extended for a period of time equal to the avoidance period the Holder of doubt, Registrable Securities refrains from selling any securities included in such registration statement at the foregoing sentence is not intended to limit the obligation request of the Company or the lead managing underwriter(s) pursuant to maintain the continuous effectiveness provisions of this Agreement) or (B) if, after it has become effective, such Demand Registration becomes subject, prior to one hundred eighty (180) days after effectiveness, to any stop order, injunction or other order or requirement of the Short-Commission or other Governmental Authority, other than by reason of any act or omission by the applicable Selling Stockholders.
(d) Demand Registrations shall be on Form Registration contemplated F-1 or Form F-3 if the Company is eligible under Applicable Law to register Registrable Securities on Form F-3 or, if the Company reasonably believes another registration form of the Commission would be more appropriate, such other appropriate registration form of the Commission as shall be selected by Section 2.1(h) as required by Section 2.1(h)the Company and reasonably acceptable to the Requesting Shareholders.
(e) The Company shall not be obligated to (i) subject to Section 1.1(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration for a period longer than one hundred eighty (180) days or (ii) effect any Demand Registration (A) within forty-five (45) days of a “firm commitment” Underwritten Offering in which all Demand Shareholders were offered “piggyback” rights pursuant to Section 1.2 (subject to Section 1.2(b)) and at least 90% of the number of Registrable Securities requested by such Demand Shareholders to be included in such Underwritten Offering were included and sold or (B) during the first year after the Closing Date, within three (3) months of the completion of any other Demand Registration.
(f) The Company shall be entitled to postpone (but not more than once in upon written notice to the Requesting Shareholders and any six-month periodOther Holders whose Registrable Securities are covered by such Demand pursuant to Section 1.1(b), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), ) the filing or initial the effectiveness of, or suspend the use of, of a registration statement for any Demand Registration Statement if in the event of a Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period, the Company delivers shall deliver to the Holders’ Representative Requesting Shareholders requesting registration and any Other Holders whose Registrable Securities are covered by such Demand pursuant to Section 1.1(b) a certificate signed by both either the Chief Executive Officer and Chief Financial Officer chief executive officer or the chief financial officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing the conditions described in the definition of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration StatementBlackout Period are met.
(g) No request for registration will count for If the purposes Majority in Interest of the limitations in Section 2.1(c) if: (A) Requesting Shareholders so advise the Holders’ Representative determines in good faith to withdraw Company as part of their Demand Registration that the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% offering of the Registrable Securities pursuant to such Demand Registration shall be in the form of an Underwritten Offering, then the right of such Requesting Shareholder or Other Holders that have requested to include Registrable Securities in such Registration shall be conditioned upon such Requesting Shareholder’s participation in such Underwritten Offering and the inclusion of such Requesting Shareholder’s Registrable Securities in such Underwritten Offering to the extent provided herein (for the avoidance of doubt, in the event that SL Sponsor acts as Requesting Shareholder on behalf of the Escrow Agent, including the Registrable Securities held by the Escrow Agent and included in the applicable registration relating Underwritten Offering in accordance with the Management Shareholders Agreement). All such Requesting Shareholders and Other Holders (including the Escrow Agent and, if required, Management Shareholders) proposing to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the distribute their Registrable Securities requested by through an Underwritten Offering under this Section 1.1(g) shall enter into an underwriting agreement in customary form with the Holders to be included in the registration are not so included Underwriter(s) selected for such Underwritten Offering pursuant to Section 2.1(b1.1(i), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoingIf, in connection with a Demand Registration or Shelf Offering that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company will use that, in its reasonable best efforts (their) opinion, the inclusion of all of the securities sought to remain qualified for be registered in connection with such Demand Registration or Shelf Offering would adversely affect the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first pro rata among the Holders that have requested to participate in such Demand Registration or Shelf Offering based on Form S-3 the relative number of Registrable Shares then held by each such Holder (including, without limitationin the event that SL Sponsor has included Registrable Securities held by the Escrow Agent, such Registrable Shares, as if availablethey were held by SL Sponsor); (ii) second, an automatic shelf other securities of the Company duly requested to be included in such registration statement for by other persons, pro rata on the basis of the amount of such other securities requested to be included or such other allocation method determined by the Company; and (iii) third, securities the Company proposes to sell.
(i) Any time that a “well-known seasoned issuer” as defined Demand Registration or Shelf Offering involves an Underwritten Offering, the Majority in Rule 405 under Interest of the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”Requesting Shareholders shall select the investment banker(s) and the Company shall file, manager(s) that will serve as promptly managing underwriters (including which of such managing underwriters will serve as reasonably practicable after the execution lead or co-lead) and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, underwriters and the sale on a continuous or delayed basis (notwithstanding anything their respective economics with respect to the contrary in Section 2.1(d)) of, the offering of such Registrable Securities, pursuant ; provided that such investment banker(s) and manager(s) shall be subject to Rule 415 under the Securities Act, to permit the distribution prior written consent of the Registrable Securities in accordance with the methods of distribution elected by the HoldersCompany, including by means of an underwritten offering. Upon filing a Short-Form Registrationnot to be unreasonably withheld, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending conditioned or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))delayed.
Appears in 1 contract
Sources: Registration Rights Agreement (Global Blue Group Holding AG)
Demand Registrations. (a) At any time and from time to time, the Holders’ Representative shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant Subject to the terms of this Agreementand conditions hereof, register under and in accordance with at any time after the provisions expiration of the Restricted Period, if any Shareholder or Shareholders who beneficially own in the aggregate Registrable Securities Act representing not less than 20% of the then outstanding Common Stock request in writing a Demand Registration, which request specifies the number of Registrable Securities owned by Holders requested to be registered, then within ten (10) days after receipt of any such request, the Company shall give written notice of such requested Demand Registration to all other Shareholders who are record holders of Registrable Securities and shall include in the Demand Registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 15 days after the date of mailing of the Company’s notice.
(a) Shareholders shall be entitled to not more than three (3) Demand Registrations, in the aggregate. Subject to the limitations set forth in this Section 4.1(a) and in Section 4.1(c), no more than one Demand Registration may be requested by in any six-month period. The Company shall pay all Registration Expenses (as defined in Section 4.5) in connection with each Demand Registration. No request for a Demand Registration shall be permitted unless the Registrable Securities sought to be included in such Demand Notice Registration have an expected market value of at least $50 million. A Registration shall not count as a Demand Registration until it has become effective, and any Registration shall not count as a Demand Registration unless the initiating Shareholder or Shareholders and other Shareholders are able to register and sell at least 50% of the Registrable Securities requested to be so registered included in such Registration.
(a “Demand Registration”); provided, however, that b) If the investment banker(s) or manager(s) of an offering pursuant to a Demand Notice Registration advise the Company in writing that in their opinion the number of Registrable Securities and other securities requested to be included in such offering, exceeds the number of Registrable Securities and other securities, if any, which can be sold in an orderly manner in such offering and/or that the number of shares of Registrable Securities proposed to be included in such offering would adversely affect the price per share of the Common Stock, the Company shall include in the Registration, prior to the inclusion of any securities which are not Registrable Securities, the number of Registrable Securities requested to be included which, in the opinion of the underwriters, can be so sold, pro rata (or as may only have otherwise been agreed among the Shareholders of Registrable Securities to be made if included in such Registration) among the respective Shareholders thereof on the basis of the amount of Registrable Securities requested to be registered by each such Shareholder; provided that if the number of Registrable Securities to be included in the Registration is either (i) at least 20less than 75% of the aggregate number requested to be so included, the Shareholders of Registrable Securities then held covered by all Holders or (ii) reasonably expected such Demand Registration shall be entitled to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) withdraw such request, upon the affirmative vote of Shareholders holding at least $25 million. A Demand Notice shall also specify the expected method or methods 66% of disposition of the applicable such Registrable Securities. Following receipt of , and, if such request is withdrawn, the Demand Registration shall not count as a permitted Demand NoticeRegistration hereunder, and the Company shall file, as promptly as reasonably practicable, but pay all Registration Expenses in connection with the withdrawn Registration. Any Persons who participate in Demand Registrations not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by at the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale Company’s expense must pay their share of the Registrable Securities requested to be included therein by the Holders thereof Registration Expenses as provided in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder4.5.
(c) The Holders collectively Company shall not be obligated to effect any Demand Registration within six months after the effective date of a Registration in which the Shareholders were given Piggyback Registration (as defined in Section 4.2) rights pursuant to Section 4.2. The Company may, not more than twice in any 12-month period, postpone for up to 90 days the filing or the effectiveness of a registration statement for a Demand Registration if the Board determines in good faith that (i) such postponement is necessary in order to avoid premature disclosure of a matter the Board has determined would not be in the best interest of the Company to be disclosed at such time, (ii) the Demand Registration would materially and adversely impact the Company or (iii) the Demand Registration would adversely affect the price per share of the Common Stock; provided, that in such event, the Shareholders of Registrable Securities covered by the Demand Registration shall be entitled entitled, upon the affirmative vote of holders holding at least 66% of such Registrable Securities, to withdraw such request no and, if such request is withdrawn, the Demand Registration shall not count as a permitted Demand Registration hereunder, and the Company shall pay all Registration Expenses in connection with the withdrawn Registration; provided further, that upon the election of the Company and upon notice to the Shareholders of Registrable Securities to be included in such Registration, one such postponement may be extended to not more than three Demand Registrations 120 days at the sole discretion of the Company. In addition, and in no event shall if any request for a Demand Registration is delivered at a time when the Company be required is planning to effect more than one file a registration statement with respect to an underwritten primary offering of Common Stock, the Company may require the Shareholders to postpone a request for Demand Registration in any six month perioduntil the expiration of the 180-day period following the effective date of such registration.
(d) In the event of connection with a Demand Registration, the Company shall use its reasonable best efforts to maintain select the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”investment banker(s) and manager(s) to administer the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Demand Registrations. (a) At Subject to Section 4.8, at any time and from time to timetime following the Conversion Date, the Holders’ Representative shall have the right by delivering one or more written notices to Investor may request the Company to use commercially reasonable efforts to effect a Registration of all or part of its Registrable Shares (each, a “Demand Notice”) such Registration being hereinafter referred to require the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (as a “Demand Registration”); provided, however, that ) by filing a Demand Notice may only Prospectus under the Canadian Securities Laws of the jurisdictions selected by the Investor. Any such request shall be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof notice in accordance with the methods of distribution elected by such Holders writing (a “Demand Registration StatementRequest”) to the Company. Subject to Section 4.1(b), the Company shall be entitled to include for sale in any Prospectus filed pursuant to a Demand Registration any securities of the Company to be sold by the Company for its own account. The Company shall as soon as reasonably practical, and shall in any event within 30 days of receipt of a Demand Registration Request, file a Prospectus under the Canadian Securities Laws of the jurisdictions selected by the Investor covering all of the Registrable Shares that the Investor requested to be registered and, as applicable, any securities offered by the Company for its own account, and use its commercially reasonable best efforts to cause such Registration Statement a receipt to be declared effective under issued for such Prospectus as soon as reasonably practicable. The Company and the Securities Act as promptly as practicable after Investor shall cooperate in a timely manner in connection with any such distribution and the filing thereofprocedures in Schedule A shall apply.
(b) No securities shall be included under If the lead underwriter or underwriters in any underwritten Demand Registration Statement related to an underwritten offering without advise the written consent Company in writing that the inclusion of all the Holders’ Representative, except Registrable Securities securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to in a Demand Registration are to be sold in a firm commitment underwritten offeringRegistration, and including securities offered by the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offeringCompany for its own account, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statementas applicable, exceeds the total number or dollar amount of such securities that can be sold without having may have an adverse effect on the amount, price, timing distribution or distribution sales price of the Registrable Securities to be so included together with all securities being offered unless the number of such Other Securitiessecurities is reduced (such reduced offering size, then there shall be included the “Maximum Offering Size”), the Company will include in such offering the number or dollar amount of Registrable Securities and such Other Securities that Registration, in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offeringfollowing priority, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
in the aggregate up to the Maximum Offering Size: (i) first, all Registrable Shares requested to be registered in the Registrable Securities for which inclusion in such demand offering was requested Demand Registration by the HoldersInvestor, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
and (ii) second, among any holders of Other Securities, pro rata, based on securities offered by the number of Other Securities Beneficially Owned by each such holderCompany for its own account.
(c) The Holders collectively Company shall not be obliged to effect:
(i) more than two Demand Registrations in any one 12 month period; provided however, that a Registration shall not be deemed “effected” for purposes of this Section 4.1 until such time as a receipt has been issued by, or deemed to be issued by, the applicable Canadian Securities Commission for a final Prospectus pursuant to which all of the Registrable Shares included in the Demand Registration are to be distributed; provided however, that if the Investor withdraws, or does not pursue a request for a Demand Registration after (A) filing a preliminary Prospectus pursuant to which the Registrable Shares are to be distributed, or (B) the entering into of an enforceable bought deal letter or an underwriting or agency agreement in connection with the Demand Registration, then such Demand Registration shall be entitled deemed to be effected and provided further that if the Investor withdraws its request no more than three Demand Registrations for inclusion of its Registrable Shares at any time after having learned of a material adverse change in the condition or business of the Company, and or if the Investor withdraws its request during the Suspension Period, the Investor shall not be deemed to have participated in no event shall the Company be required to effect more than one or requested such Demand Registration;
(ii) a Demand Registration in respect of (A) a number of Registrable Shares that is expected to result in gross proceeds of less than C$50 million to the Investor or (B) all of the Registrable Shares owned by the Investor at such time; or
(iii) a Demand Registration before the 90th day following the date on which a receipt was issued to the Company with respect to any six month periodfinal Prospectus filed by the Company in connection with another Demand Registration.
(d) In The Company may postpone the event filing of a Prospectus to effect a Demand Registration, Registration for the Company shall use its reasonable best efforts to maintain the continuous effectiveness later of the applicable Registration Statement for (i) a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once 90 days or (ii) the duration of the period that the Company is, in any sixgood faith, pursuing a Business Opportunity presented to the Company by the Investor in accordance with Section 5.3 that would constitute a “significant acquisition” for the Company pursuant to Part 8 of National Instrument 51-month period102 – Continuous Disclosure Obligations (each, a “Suspension Period”), for a reasonable period of time not in excess of 60 days (and not for periods exceedingupon written notice to the Investor, in the aggregate, 90 days during any twelve-month period), event the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, Independent Directors reasonably determine in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) ifeither: (A) the Holders’ Representative determines in good faith to withdraw filing of that Prospectus for the proposed registration prior to Demand Registration would materially impede the effectiveness ability of the Registration Statement relating Company to such request due to marketing conditions consummate a bona fide transaction (including a financing, an acquisition, a disposition, a restructuring or regulatory reasons a merger) or proceed with negotiations or discussions in relation thereto; or (B) there exists at the time material non-public information relating to the CompanyCompany or its Subsidiaries or Investees, the disclosure of which the Company believes would be materially adverse to the Company and its Subsidiaries and Investees, taken as a whole, and which the Company or its Subsidiaries or Investees are not otherwise required by applicable Law or regulations to disclose; (each of (A) and (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form RegistrationValid Business Reason”) and provided, however, that (i) the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything give written notice to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution Investor of the Registrable Securities in accordance with time at which it determines the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts Valid Business Reason to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).exist; and
Appears in 1 contract
Sources: Investor Rights and Strategic Opportunities Agreement
Demand Registrations. (ai) At any time Subject to Sections 2.1(b) and from time to time2.3 below, the Holders’ Representative Holders of 15% of the Registrable Securities (which calculation shall include all Registrable Securities then outstanding and all Registrable Securities into which all shares of Series A Preferred Stock then outstanding may be converted) shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act covering all or any part of their respective Registrable Securities, by delivering a written request therefor to the Company specifying the number of Registrable Securities owned by Holders and requested to be included in such registration by such Holder(s) and the intended method of distribution thereof. All such requests by any Holder(s) pursuant to this Section 2.1(a)(i) are referred to herein as "Demand Notice Registration Requests," and the registrations so requested are referred to be so registered herein as "Demand Registrations" (a “with respect to any Demand Registration”, the Holder(s) making such demand for registration being referred to as the "Initiating Holder"). As promptly as practicable, but no later than ten days after receipt of a Demand Registration Request, the Company shall give written notice (the "Demand Exercise Notice") of such Demand Registration Request to all Holders of record of Registrable Securities. After the Company has effected two Demand Registrations pursuant to this Section 2.1(a)(i), the related registration statements have been declared effective, and with respect to a shelf registration pursuant to Rule 415 under the Securities Act, the distribution contemplated thereunder completed, the Company shall have no further obligation under this Section 2.1(a)(i); provided, provided however, that with respect to a shelf registration pursuant to Rule 415 under the Securities Act, such registration statement shall have been effective for a period of not less than 60 days.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Notice may only be made if Registration (x) the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate Initiating Holder and (y) the Registrable Securities of any other Holder which shall have made a written request to the Company for inclusion in such registration (which request shall specify the maximum number of Registrable Securities then held intended to be disposed of by all Holders or (iisuch Holder) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify within 30 days after the expected method or methods of disposition receipt of the applicable Registrable Securities. Following receipt Demand Exercise Notice (or, 15 days if, at the request of a Demand Noticethe Initiating Holder or the Major Holder participating in such registration, the Company shall filestates in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form S-3).
(iii) The Company shall, as promptly expeditiously as reasonably practicablepossible, but not later thanuse its best efforts to (x) effect such registration under the Securities Act (including, 60 days with respect without limitation, by means of a shelf registration pursuant to any underwritten offering, or 30 days with respect to any other offering, after receipt by Rule 415 under the Securities Act if so requested and if the Company of is then eligible to use such Demand Notice (subject to paragraph (ea registration) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities which the Company has been so requested to be included therein by the Holders thereof register, for distribution in accordance with such intended method of distribution, and (y) if requested by the methods Initiating Holder or the Major Holder participating in such registration, obtain acceleration of distribution elected by the effective date of the registration statement relating to such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofregistration.
(b) No securities shall be included under any The Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to rights granted in Section 2.1(a). Subject ) to the preceding sentence, if Holders are subject to the following limitations: (i) with respect to any registration in respect of the Registrable Securities registered pursuant to a Demand Registration are to be sold Request initiated by a transferee of any GSCP Party (other than another GSCP Party), such registration statement must include shares of Common Stock representing, in a firm commitment underwritten offeringthe aggregate (based on the Common Stock included in such registration by all GSCP Parties participating in such registration), and in excess of 20% of the managing underwriter(ssum of (x) the amount of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount shares of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceedingheld, in the aggregate, 90 by the GSCP Parties and their transferees immediately prior to such registration plus (y) the amount of shares of Common Stock obtainable upon the conversion of Common Stock Equivalents held, in the aggregate, by the GSCP Parties and their transferees immediately prior to such registration; (ii) the Company shall not be required to cause a registration pursuant to Section 2.1(a)(i) to be declared effective within a period of 180 days during after the effective date of any twelve-month periodregistration statement of the Company registering shares of Common Stock or Common Stock Equivalents (other than pursuant to a registration statement on Form S-4 or S-8 or an equivalent registration form then in effect), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement ; and (iii) if the Company delivers shall furnish to the Holders’ Representative Holders who have elected to exercise their rights under Sections 2.1(a)(i) and 2.1(a)(ii) a certificate signed by both the President or the Chief Executive Officer and Chief Financial Officer of the Company certifying stating that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use effecting the registration would reasonably be expected to materially adversely affect any material financing, material acquisition, or materially interfere with any bona fide disposition of material assets or stock, or merger or other material comparable transaction or that disclosure of certain information that would otherwise be required to be disclosed in a Registration Statement to be filed pursuant to Section 2.1(a)(i) would be seriously detrimental to the Company, and imminent material financing it is therefore desirable and in the best interests of the Company or any imminent material transaction under consideration by to defer the filing of such registration statement, then the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify defer such filing for a period of time after receipt of such request; provided, however, that the Company that it has determined that may not defer such filing more than once in any 12-month period and the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in aggregate period of time during any such 12-month period which event the Company may defer such filing shall not exceed 90 days. If the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for give any notice of postponement of any registration will count for statement, the purposes Company shall not, during the period of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Companypostponement, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (register any Common Stock, other than solely by reason pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in effect). If the Company shall withdraw or prematurely terminate a registration statement filed under Section 2.1(a)(i) as a result of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court, the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of postponement of a registration statement, the Company shall, at the end of such postponement period (D) more than 10% which shall not exceed 90 days), use its best efforts to effect the registration under the Securities Act of the Registrable Securities requested covered by the Holders postponed registration statement in accordance with this Section 2.1 (unless the Initiating Holder shall have withdrawn such request, in which case the Company shall not be considered to be included in have effected an effective registration for the registration are not so included pursuant to Section 2.1(bpurposes of this Agreement).
(c) If the Company, or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied stockholder (other than as a result of a material default or breach thereunder Holder) that has piggyback registration rights granted to such stockholder by the applicable Holders). Notwithstanding anything Company prior to the contrarydate hereof ("Additional Piggyback Rights"), the Company will pay all expenses (in accordance with Section 2.8) wishes to offer any of its securities in connection with any request for registration initiated pursuant to this Agreement regardless Section 2.1, no such securities may be offered by the Company or such other stockholder without the consent of whether or not the Major Holder unless the terms of such request counts toward Additional Piggyback Rights require that such securities be registered in connection with any such Demand Registration, in which case such securities shall be offered only to the limitation set forth aboveextent permitted by Section 2.3(a).
(hd) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or connection with any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Demand Registration, the Company Major Holder participating in such registration shall use have the right to designate, (i) if ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or one of its reasonable best efforts to keep Affiliates (such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expirationPerson, and "GS & Co.") is not retained by the Company shall cooperate to serve as the lead managing underwriter in any shelf take-down by amending or supplementing connection with such registration, the Prospectus related to lead managing underwriter for such Short-Form Registration as may be registration and (ii) each other managing underwriter for such registration, provided that each such other managing underwriter is reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything satisfactory to the contrary in Section 2.1(d))Company.
Appears in 1 contract
Sources: Registration Rights Agreement (Goldman Sachs Group Inc)
Demand Registrations. (ai) At Subject to Section 2.1(b) below, at any time and after the date that is eighteen months from time to timethe date hereof, the Holders’ Representative Holders shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act covering such aggregate number of Registrable Securities which represents 20% or greater of the Total Voting Power of the then outstanding Registrable Securities, by delivering a written request therefor to the Company specifying the number of Registrable Securities owned to be included in such registration by such Holders and the intended method of distribution thereof; PROVIDED, HOWEVER that no shares of Common Stock issued or issuable, directly or indirectly, upon conversion of (x) shares of Series A Convertible Preferred Stock or (y) shares of Series B Convertible Preferred Stock may be included in such request prior to the date that is eighteen months from the date hereof. All such requests by any Holder pursuant to this Section 2.1(a)(i) are referred to herein as "Demand Registration Requests," and the registrations so requested by are referred to herein as "Demand Registrations" (with respect to any Demand Registration, the Holders making such demand for registration being referred to as the "Initiating Holders"). As promptly as practicable, but no later than ten days after receipt of a Demand Registration Request, the Company shall give written notice (the "Demand Exercise Notice") of such Demand Notice Registration Request to be so registered all Holders of record of Registrable Securities.
(a “Demand Registration”); providedii) The Company, howeversubject to Sections 2.3 and 2.6, that shall include in a Demand Notice may only be made if Registration (x) the amount Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities requested which shall have made a written request to be registered is either the Company for inclusion in such registration (itogether with the Initiating Holders, the "Participating Holders") at least 20% of (which request shall specify the aggregate maximum number of Registrable Securities then held intended to be disposed of by all Holders or (iisuch Participating Holders) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify within 30 days after the expected method or methods of disposition receipt of the applicable Registrable Securities. Following receipt Demand Exercise Notice (or, 15 days if, at the request of a Demand Noticethe Initiating Holders, the Company shall filestates in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form S-3).
(iii) The Company shall, as promptly expeditiously as reasonably practicable, possible but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.12.1(b), a Registration Statement relating use its commercially reasonable efforts to (x) effect such registration under the offer and sale Securities Act of the Registrable Securities which the Company has been so requested to be included therein by the Holders thereof register, for distribution in accordance with such intended method of distribution, and (y) if requested by the methods Majority Participating Holders, obtain acceleration of distribution elected by the effective date of the registration statement relating to such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofregistration.
(b) No securities shall be included under any Notwithstanding anything to the contrary in Section 2.1(a), the Demand Registration Statement related rights granted in Section 2.1(a) to an underwritten offering without the written consent of Holders are subject to the Holders’ Representative, except Registrable Securities requested following limitations: (i) the Company shall not be required to be included therein cause a registration pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are 2.1(a)(i) to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for declared effective within a period of at least one year 180 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation any other registration statement of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers filed pursuant to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of Securities Act; (ii) if the Board of Directors of the Company, such registrationin its good faith judgment, offering determines that any registration of Registrable Securities should not be made or use continued because it would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of financing, acquisition, corporate reorganization or merger or other transaction or event involving the Company or any imminent material transaction under consideration by of its subsidiaries (a "Valid Business Reason"), the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement may postpone filing a registration statement relating to a Demand Registration be abandoned Request until such Valid Business Reason no longer exists, but in no event for more than three months (such period of postponement or withdrawnwithdrawal under this clause (ii), in which event the "Postponement Period"); and the Company shall promptly abandon give written notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such Registration Statement.
postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof; PROVIDED, HOWEVER, the Company shall not be permitted to postpone or withdraw a registration statement after the expiration of any Postponement Period until twelve months after the expiration of such Postponement Period; (giii) No request for registration will count the Company shall not be obligated to effect more than three Demand Registrations under Section 2.1(a) for the purposes Holders, and (iv) the Company shall not be required to effect a Demand Registration unless the Registrable Securities to be included in such registration have an aggregate anticipated offering price of at least $25,000,000 (based on the then-current market price of the limitations in Section 2.1(cRegistrable Securities). If the Company shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (ii) if: (A) above, the Holders’ Representative determines in good faith to withdraw Company shall not, during the proposed registration prior to the effectiveness period of the Registration Statement relating to such request due to marketing conditions postponement or regulatory reasons relating to withdrawal, register any equity security of the Company, other than pursuant to a registration statement on Form S-4 or S-8 (Bor an equivalent registration form then in effect). Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw any registration statement pursuant to clause (ii) the Registration Statement relating above, such Holder will discontinue its disposition of Registrable Securities pursuant to such request is not declared effective within 60 days registration statement and, if so directed by the Company, will deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in such Holder's possession of the date prospectus covering such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included that was in effect at the applicable time of receipt of such notice. If the Company shall have withdrawn or prematurely terminated a registration relating statement filed under Section 2.1(a)(i) (whether pursuant to such request, such registration is adversely affected by clause (ii) above or as a result of any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement, the Company shall, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (D) more but in no event later than 10% three months after the date of the postponement or withdrawal), use its commercially reasonable best efforts to effect the registration under the Securities Act of the Registrable Securities requested covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the Initiating Holders shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of this Agreement).
(c) The Company, subject to Sections 2.3 and 2.6, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), (i) authorized but unissued shares of Common Stock or shares of Common Stock held by the Company as treasury shares and (ii) any other shares of Common Stock which are requested to be included in such registration pursuant to the registration exercise of piggyback rights granted by the Company which are not so included inconsistent with the rights granted in, or otherwise conflict with the terms of, this Agreement ("Additional Piggyback Rights"); provided, however, that such inclusion shall be permitted only to the extent that it is pursuant to Section 2.1(b), or (E) and subject to the conditions to closing specified in any terms of the underwriting agreement or purchase agreement arrangements, if any, entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Participating Holders). Notwithstanding anything to the contrary, the Company will pay all expenses .
(in accordance with Section 2.8d) in In connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Demand Registration, the Company shall use its reasonable best efforts have the right to keep designate the lead managing underwriter in connection with such Short-Form Registration effective with the SEC at all times registration and any Short-Form Registration shall be re-filed upon its expirationeach other managing underwriter for such registration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (provided that in each case, notwithstanding anything each such underwriter is reasonably satisfactory to the contrary in Section 2.1(d))Majority Participating Holders.
Appears in 1 contract
Demand Registrations. (ai) At Subject to Section 2.1(c), at any time and or from time to timetime after the six-month anniversary of the first date on which the Company shall have effected the registration under the Securities Act of any shares of Common Stock, the Holders’ Representative one or more Holders shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act covering such aggregate number of Registrable Securities that have an aggregate anticipated offering price of at least $10,000,000 (based on the market price of the Common Stock as of the date of the Demand Registration Request (as defined below)), by delivering a written request therefor to the Company specifying the number of Registrable Securities owned to be included in such registration by such Holders and the intended method of distribution thereof. All such requests by any Holder pursuant to this Section 2.1(a)(i) are referred to as “Demand Registration Requests,” the registrations so requested by are referred to as “Demand Registrations” and the Holders making such demand for registration are referred to as the “Initiating Holders.” As promptly as practicable, but no later than ten days after receipt of a Demand Notice to be so registered Registration Request, the Company shall give written notice (a “Demand Exercise Notice”) of such Demand Registration Request to all Holders.
(ii) The Company, subject to Sections 2.3 and 2.7, shall include in a Demand Registration (A) the Registrable Securities of the Initiating Holders and (B) the Registrable Securities of any other Holder that shall have made a written request to the Company within the time limits specified below for inclusion in such registration. Any such request from the other Holders must be delivered to the Company within 15 days after the receipt of the Demand Exercise Notice and must specify the maximum number of Registrable Securities intended to be disposed of by such other Holder.
(iii) Subject to Section 2.1(c), the Company, as expeditiously as possible, shall use its commercially reasonable efforts to effect such Demand Registration.
(b) Registrations under this Section 2.1 shall be on such appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which form shall be selected by the Company and shall be reasonably acceptable to the Majority Participating Holders.
(c) The Demand Registration rights granted in Section 2.1(a) to the Holders are subject to the following limitations:
(i) the Company shall not be required to cause a registration pursuant to Section 2.1(a) to be filed within 90 days or to be declared effective within a period of 180 days after the effective date of any other registration statement of the Company filed pursuant to the Securities Act (provided that this Section 2.1(c)(i) shall not apply following the filing of any registration statement on Form S-8 or any successor or similar form which is then in effect);
(ii) if, in the opinion of outside counsel to the Company, any registration of Registrable Securities would require disclosure of information not otherwise then required by law to be publicly disclosed and, in the good faith judgment of the board of directors of the Company, such disclosure is reasonably likely to adversely affect any material financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Company or otherwise have a material adverse effect on the Company (a “Valid Business Reason”), the Company may postpone or withdraw a filing of a registration statement relating to a Demand Registration Request until such Valid Business Reason no longer exists, but in no event shall the Company avail itself of such right for more than 90 days, in the aggregate, in any period of 365 consecutive days (such period of postponement or withdrawal under this clause (ii), the “Postponement Period”); and the Company shall give notice to the Participating Holder(s) of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof; and
(iii) the Company shall not be obligated to effect more than ten Demand Registrations under Section 2.1(a) for the benefit of the Holders. If the Company shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (ii) above, the Company shall not register any equity security of the Company during the period of postponement or withdrawal. Each Holder agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw any registration statement pursuant to clause (ii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Company shall have withdrawn or prematurely terminated a registration statement filed under Section 2.1(a)(i), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement pursuant to clause (ii) above, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event more than 90 days after the date of the postponement or withdrawal), the Company shall use its commercially reasonable efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1.
(d) The Company, subject to Sections 2.3 and 2.7, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), (i) authorized but unissued shares of Common Stock or shares of Common Stock held by the Company as treasury shares and/or (ii) any other shares of Common Stock that are requested to be included in such registration pursuant to the exercise of piggyback rights granted by the Company that are not inconsistent with the rights granted in, or do not otherwise conflict with the terms of, this Agreement (“Additional Piggyback Rights”); provided, however, that such inclusion shall be permitted only to the extent that it is pursuant to and subject to the terms of the underwriting agreement or arrangements, if any, entered into by the Participating Holders.
(e) A Holder may withdraw its Registrable Securities from a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) Registration at least 20% of the aggregate number of Registrable Securities then held by any time. If all such Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Noticedo so, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect cease all efforts to any underwritten offering, secure registration and such registration nonetheless shall be deemed a Demand Registration for purposes of this Section 2.1 unless (i) the withdrawal is made following withdrawal or 30 days with respect to any other offering, after receipt postponement of such registration by the Company of such Demand Notice (subject pursuant to paragraph (e) of this a Valid Business Reason as contemplated by Section 2.12.1(c)(ii), a Registration Statement relating to (ii) the offer and sale withdrawal is based on the reasonable determination of the Registrable Securities requested to be included therein Initiating Holders that there has been, since the date of the Demand Registration Request, a material adverse change in the business or prospects of the Company or (iii) the Initiating Holders have paid or reimbursed the Company for all of the reasonable out-of-pocket fees and expenses incurred by the Holders thereof Company in accordance connection with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofwithdrawn registration.
(bf) No securities shall be included under any A Demand Registration Statement related shall not be deemed to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, have been effected and the managing underwriter(s) of shall not count as such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, unless a registration statement with respect thereto has become effective and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement has remained effective for a period of at least one year after the effective date thereof 180 days or such shorter period in during which all Registrable Securities included in covered by such Registration Statement registration statement have actually been sold. For the avoidance of doubtsold or withdrawn, the foregoing sentence is not intended or, if such registration statement relates to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period)an underwritten offering, for a reasonable such longer period of time not in excess of 60 days (and not for periods exceedingas, in the aggregate, 90 days during any twelve-month periodopinion of counsel for the underwriter(s), the filing or initial effectiveness of, or suspend the use of, is required by law for delivery of a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, prospectus in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere connection with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in by an underwriter or dealer, (ii) if, after the applicable registration relating statement with respect thereto has become effective, it becomes subject to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity governmental agency or courtcourt for any reason, (Diii) more than 10% of the Registrable Securities requested if it is withdrawn by the Holders to be included in the registration are not so included Company pursuant to a Valid Business Reason as contemplated by Section 2.1(b), 2.1(c)(ii) or (Eiv) if the conditions to closing specified in any underwriting the purchase agreement or purchase underwriting agreement entered into in connection with the registration relating to such request Demand Registration are not satisfied (satisfied, other than as a result solely by reason of a material default some act or breach thereunder by omission of the applicable Participating Holders). Notwithstanding anything to the contrary.
(g) In connection with any Demand Registration, the Company will pay all expenses (in accordance with Section 2.8) Majority Participating Holders may designate the lead managing underwriter in connection with any request such registration and each other managing underwriter for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoingregistration; provided, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (includingthat, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything each such underwriter is reasonably satisfactory to the contrary in Section 2.1(d))Majority Participating Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Caliber Home Loans, Inc.)
Demand Registrations. (ai) At Subject to Sections 2.1(b) and 2.3, at any time and from time to timetime following the date hereof, each of the Holders’ Representative Major Holders (each a “Demand Party”) shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file one or more registration statements under and in accordance with the provisions of the Securities Act covering all or any part of its and its Affiliates’ Registrable Securities by delivering a written request therefor to the Company specifying the number of Registrable Securities owned by Holders and requested by such Demand Notice to be included in such registration and the intended method of distribution thereof. Any such request by any Demand Party pursuant to this Section 2.1(a)(i) is referred to herein as a “Demand Registration Request” and the registration so registered (requested is referred to herein as a “Demand Registration” (with respect to any Demand Registration, the Major Holder(s) making such demand for registration being referred to as the “Initiating Holder(s)”). Any Demand Registration Request may request that the Company register Registrable Securities on an appropriate form, including a shelf registration statement, and, if the Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act, a “WKSI”), an automatic shelf registration statement. The Company shall give written notice (the “Demand Exercise Notice”) of such Demand Registration Request to each of the Holders of record of Registrable Securities, if any, other than the Initiating Holder(s), at least five (5) Business Days prior to the filing of any registration statement under the Securities Act.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities that shall have made a written request to the Company for inclusion in such registration pursuant to Section 2.2 (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Participating Holder) within five (5) days following the receipt of any such Demand Exercise Notice.
(iii) The Company shall, as expeditiously as reasonably possible, but subject to Section 2.1(b), use its commercially reasonable efforts to (x) file with the SEC (no later than forty-five (45) days from the Company’s receipt of the applicable Demand Registration Request) and cause to be declared effective such registration under the Securities Act as soon as reasonably practicable thereafter (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the Securities Act if so requested and if the Company is then eligible to use such a registration) with respect to the Registrable Securities that the Company has been so requested to register for distribution in accordance with the intended method of distribution and (y) if requested by the Initiating Holders, obtain acceleration of the effective date of the registration statement relating to such registration.
(b) Notwithstanding anything to the contrary in Section 2.1(a), the Demand Registration rights granted in Section 2.1(a) are subject to the following limitations: (i) the Company shall not be required to effect more than (x) five (5) Demand Registrations on Form S-1 or any similar long-form registration at the request of any Major Holder; provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Major Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request an unlimited number of Demand Registrations on Form S-3 or any similar short-form registration (including pursuant to Rule 415 under the Securities Act) or take-downs or other offerings off an existing Form S-3; and (ii) if the Board, in its good faith judgment, determines that any registration of Registrable Securities should not be made or continued because it would materially and adversely interfere with any existing or potential material financing, acquisition, corporate reorganization, merger, share exchange or other transaction or event involving the Company or any of its subsidiaries or because the Company does not yet have appropriate financial statements of any acquired or to be acquired entities available for filing (in each case, a “Valid Business Reason”), then (x) the Company may postpone filing a registration statement relating to a Demand Registration Request until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than three forty-five (45) days after the date the Board determines a Valid Business Reason exists, and (y) in case a registration statement has been filed relating to a Demand Registrations of Registration Request, if the Valid Business Reason has not resulted in whole or part from actions taken or omitted to be taken by the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registrationmay, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, extent determined in the good faith judgment of the Board of Directors to be reasonably necessary to avoid interference with any of the Companytransactions described above, suspend use of or, if required by the SEC, cause such registrationregistration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until five (5) Business Days after such Valid Business Reason no longer exists, offering but in no event for more than forty-five (45) days after the date the Board determines a Valid Business Reason exists (such period of postponement or withdrawal under this clause (v), the “Postponement Period”). The Company shall give written notice to the Initiating Holders and any other Holders that have requested registration pursuant to Section 2.1 or Section 2.2 of its determination to postpone or suspend use would reasonably be expected to materially adversely affect of or materially interfere with any bona fide withdraw a registration statement and imminent material financing of the Company fact that the Valid Business Reason for such postponement or any imminent material transaction under consideration by suspension or withdrawal no longer exists, in each case, promptly after the occurrence thereof; provided, however, the Company shall not be permitted to postpone or would require suspend use of or withdraw a registration statement after the disclosure expiration of information that has not been, and is not otherwise required any Postponement Period until twelve (12) months after the expiration of such Postponement Period. If the Company shall give any notice of postponement or suspension or withdrawal of any registration statement pursuant to be, disclosed to the publicclause (ii) above, the premature disclosure Company shall not, during the Postponement Period, register any Shares, other than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in effect). Each Holder of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify Registrable Securities agrees that, upon receipt of any notice from the Company that it the Company has determined that the Registration Statement relating to a Demand Registration be abandoned suspend use of, withdraw, terminate or withdrawnpostpone amending or supplementing any registration statement pursuant to clause (ii) above, in which event such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Company shall promptly abandon have suspended use of, withdrawn or withdraw such Registration Statement.
terminated a registration statement filed under Section 2.1(a)(i) (gwhether pursuant to clause (ii) No request for registration will count for the purposes above or as a result of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), the Company shall not be considered to have effected a Demand Registration for the purposes of this Agreement until the Company shall have permitted use of such suspended registration statement or filed a new registration statement covering the Registrable Securities covered by the withdrawn or terminated registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of suspension, withdrawal or postponement of a registration statement, the Company shall, not later than five (5) Business Days after the Valid Business Reason that caused such suspension, withdrawal or postponement no longer exists (but in no event later than forty-five (45) days after the date of the suspension, postponement or withdrawal), as applicable, permit use of such suspended registration statement or use its reasonable best efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the Initiating Holders shall have withdrawn such request, in which case the Company shall not be considered to have effected a Demand Registration for the purposes of this Agreement and such request shall not count as a Demand Registration Request under this Agreement), and following such permission or such effectiveness, such registration shall no longer be deemed to be suspended, withdrawn or postponed pursuant to clause (ii) of Section 2.1(b) above.
(c) In connection with any Demand Registration (including any Shelf Underwriting or Underwritten Block Trade (as defined below)), the Holders of a majority of the Registrable Securities included in such Demand Registration shall have the right to designate the lead managing underwriter (any lead managing underwriter for the purposes of this Agreement, the “Manager”) in connection with any underwritten offering pursuant to such registration and each other managing underwriter for any such underwritten offering and counsel for the Participating Holders; provided that, in each case, each such underwriter is reasonably satisfactory to the Company, which approval shall not be unreasonably withheld or delayed; provided further that each Major Holder that is a Participating Holder shall have the right to designate a Selling Shareholders Counsel to act on such Major H▇▇▇▇▇’s behalf.
(d) No Demand Registration shall be deemed to have occurred for purposes of Section 2.1(a) (i) if the registration statement relating thereto (x) does not become effective, (Dy) more than 10% is not maintained effective for a period of at least one hundred eighty (180) days after the effective date thereof or such shorter period during which all Registrable Securities included in such registration statement have actually been sold (provided, however, 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 an underwriter of the Company) or (z) is subject to a stop order, injunction or similar order or requirement of the SEC during such period, (ii) if any of the Registrable Securities requested by the Holders such Initiating Holder to be included in the registration such Demand Registration are not so included pursuant to Section 2.1(b2.3 (even where some or most of such Holder’s Registrable Securities are included in such Demand Registration), (iii) if the method of disposition is a firm commitment underwritten public offering and any of the applicable Registrable Securities identified in the preliminary prospectus or preliminary prospectus supplement, as applicable, for such offering as being sold by the Participating Holders have not been sold pursuant thereto or (Eiv) if the conditions to closing specified in any underwriting agreement, purchase agreement or purchase similar agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by such Initiating Holder(s) or its Affiliates) or are otherwise not waived by such Initiating Holder(s).
(e) In the applicable Holdersevent that the Company files a shelf registration statement under Rule 415 of the Securities Act pursuant to a Demand Registration Request and such registration becomes effective (such registration statement, a “Shelf Registration Statement”), the Initiating Holders with respect to such Demand Registration Request and the other Demand Parties with Registrable Securities registered on such Shelf Registration Statement (or, in the case of an automatic shelf registration statement, the Demand Parties) shall have the right at any time or from time to time to elect to sell pursuant to an underwritten offering Registrable Securities available for sale pursuant to such registration statement. Any such Initiating Holder or Demand Party shall make such election by delivering to the Company a written request (a “Shelf Underwriting Request”) for such underwritten offering specifying the number of Registrable Securities that such Initiating Holder or Demand Party, as applicable, desires to sell pursuant to such underwritten offering (the “Shelf Underwriting”). Notwithstanding anything to the contraryAs promptly as practicable, but no later than two (2) Business Days after receipt of a Shelf Underwriting Request, the Company will pay all expenses shall give written notice (the “Shelf Underwriting Notice”) of such Shelf Underwriting Request to the Holders of record (if any) of other Registrable Securities registered on such Shelf Registration Statement (or, in accordance with the case of an automatic shelf registration statement, the Holders of record (if any) of Registrable Securities) (“Shelf Registrable Securities”). The Company, subject to Sections 2.3 and 2.6, shall include in such Shelf Underwriting (x) the Registrable Securities of the Initiating Holders and (y) the Shelf Registrable Securities of any other Holder of Shelf Registrable Securities (if any) that shall have made a written request to the Company for inclusion in such Shelf Underwriting (which request shall specify the maximum number of Shelf Registrable Securities intended to be disposed of by such Holder) within five (5) days after the receipt of the Shelf Underwriting Notice. The Company shall, as expeditiously as possible (and in any event within twenty (20) days after the receipt of a Shelf Underwriting Request), but subject to Section 2.8) in connection with any request for registration pursuant 2.1(b), use its commercially reasonable efforts to this Agreement regardless of whether or not facilitate such request counts toward the limitation set forth above.
(h) In addition to Shelf Underwriting. Notwithstanding the foregoing, the Company will use its reasonable best efforts if a Demand Party wishes to remain qualified for registration on Form S-3 engage in an underwritten block trade or similar transaction or other transaction with a 2-day or less marketing period (includingcollectively, without limitation, if available, “Underwritten Block Trade”) pursuant to a Shelf Registration Statement (either through filing an automatic shelf registration statement for or through a “welltake-known seasoned issuer” as defined in Rule 405 under down from an already effective Shelf Registration Statement), then notwithstanding the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and foregoing time periods, such Demand Party only needs to notify the Company shall file, as promptly as reasonably practicable after of the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis Underwritten Block Trade two (notwithstanding anything 2) Business Days prior to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant day such Underwritten Block Trade is to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expirationcommence, and the Company shall cooperate notify the other Holders (the “Company Block Trade Notice”) on the same day, and such other Holders (if any) must elect whether or not to participate by the next Business Day (i.e., one (1) Business Day prior to the date such offering is to commence). The Company shall as expeditiously as possible, but subject to Section 2.1(b), use its commercially reasonable efforts to facilitate such Underwritten Block Trade (which may close as early as two (2) Business Days after the date it commences); provided, however, that the Demand Party requesting such Underwritten Block Trade shall use commercially reasonable efforts to work with the Company and the underwriters prior to making such request in any order to facilitate preparation of the registration statement (including filing an automatic shelf take-down by amending or supplementing the Prospectus registration statement), prospectus and other offering documentation related to the Underwritten Block Trade. In the event a Demand Party requests such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each casean Underwritten Block Trade, notwithstanding anything to the contrary in this Section 2.1(d2.1 or in Section 2.2, any holder of Shares who is not a Holder shall have no right to notice of or to participate in such Underwritten Block Trade at any time. The Company shall, at the request of any Initiating Holder, file any prospectus supplement or, if the applicable Shelf Registration Statement is an automatic shelf registration statement, any post-effective amendments and otherwise take any action necessary to include therein all disclosure and language deemed necessary or advisable by the Initiating Holders or any other Holder of Shelf Registrable Securities to effect such Shelf Underwriting. Once a Shelf Registration Statement has been declared effective, the Demand Parties may request, and the Company shall be required to facilitate, subject to Section 2.1(b)), an unlimited number of Shelf Underwritings with respect to such Shelf Registration Statement.
(f) Any Initiating Holder may revoke a Demand Registration Request delivered by such Initiating Holder at any time prior to the effectiveness of such Demand Registration and such Demand Registration shall have no further forc
Appears in 1 contract
Sources: Registration Rights Agreement (Molekule Group, Inc.)
Demand Registrations. (a) At any time and from time Subject to timethe provisions of this Section 3.1, the Holders’ Representative Requesting Holders shall have the right by delivering one or more written notices to (the Company (each, a “"Demand Notice”Right") to require the Company to, pursuant to the terms of this Agreement, register request registration under and in accordance with the provisions of the Securities Act of all or any portion of the Registrable Securities held by such Requesting Holders by delivering a written notice to the principal business office of the Company, which notice identifies the Requesting Holders and specifies the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered included in such registration (the "Registration Request"). The Company shall give prompt written notice of such Registration Request (the "Registration Notice") to all other holders of Registrable Securities and shall thereupon use its reasonable best efforts to effect the registration (a “"Demand Registration”); provided, however, that a Demand Notice may only be made if ") under the amount of Securities Act on any form available to the Company of:
(i) the Registrable Securities requested to be registered is either (i) at least 20% of by the aggregate number of Requesting Holder and all other Registrable Securities then held by all Holders or which the Company has received a written request to register within 15 days after the Registration Notice is given;
(ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition any securities of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect proposed to any underwritten offering, or 30 days with respect to any other offering, after receipt be included in such registration by the Company of such Demand Notice for its own account; and
(subject to paragraph (eiii) of this Section 2.1), a Registration Statement relating to the offer and sale any Common Stock of the Registrable Securities requested Company proposed to be included therein in such registration by the Holders thereof in accordance with the methods holders of distribution elected by such Holders any registration rights granted other than pursuant to this Agreement (a “Demand "Other Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofRights").
(b) No securities A registration undertaken by the Company at the request of a Requesting Holder shall be included under any not count as a Demand Registration Statement related for purposes of Section 3.1(d) if:
(i) pursuant to an underwritten offering without the written consent Demand Right, the Requesting Holders are unable to register and sell at least 75% of the Holders’ Representative, except Registrable Securities that they have requested to be included therein in such registration; or
(ii) the Requesting Holders withdraw a Registration Request (A) upon the determination of the Board to postpone the filing or effectiveness of a Registration Statement pursuant to Section 2.1(a). Subject to 3.1(d) or (B) upon the preceding sentence, if any recommendation of the Registrable Securities registered managing underwriter of such offering due to discovery of a material adverse development regarding the Company or its Subsidiaries or general adverse economic or market conditions which, in such underwriter's opinion and in either case, are reasonably likely to materially and adversely affect the price that could be obtained for such securities or the marketability thereof (provided that the right of the Requesting Holders to withdraw a Registration Request pursuant to this clause (B) for general adverse economic or market conditions in reliance on this Section 3.1(b) may be exercised only once).
(c) If the sole or managing underwriter of a Demand Registration are to be sold in a firm commitment underwritten offering, and advises the managing underwriter(s) of such underwritten offering advise the Holders Company in writing that it is their good faith in its opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other other securities requested to be included exceeds the number of Registrable Securities and other securities which can be sold in such offering without adversely affecting the distribution of the securities being offered, the price that will be paid in such offering, or the marketability of such securities, then the Company shall be allocated for inclusion as followsinclude in such registration in the following order of priority:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the greatest number of Registrable Securities Beneficially Owned proposed to be registered which in the opinion of such underwriters can be so sold, such amount to be allocated ratably among each Demand Holder based on the amount of Registrable Securities held by each such Holder; andDemand Holder (or, if any Demand Holder does not request to include its ratable share, such excess shall be allocated ratably among those Demand Holders requesting to include more than their allocable share);
(ii) second, after all of the Registrable Securities that the Demand Holders propose to register, the greatest number of Registrable Securities proposed to be registered by Other Holders which in the opinion of such underwriters can be so sold, such amount to be allocated ratably among any holders of such Other Securities, pro rata, Holders based on the number amount of Other Registrable Securities Beneficially Owned held by each such holder.Other Holder (or, if any Other Holder does not request to include its ratable share, such excess shall be allocated ratably among those Other Holders requesting to include more than their allocable share); provided that, at any time after the Requesting Holders have been able to sell at least 75% of the Registrable Securities proposed to be registered by them in any registration, then for any Demand Registration thereafter, the Other Holders electing to participate in such Demand Registration pursuant to Section 3.1(d), shall participate with the Demand Holders under (i) above as if such Other Holders were Demand Holders;
(ciii) The third, after all Registrable Securities that the Demand Holders collectively and Other Holders propose to register, the greatest number of securities proposed to be registered by Persons with Other Registration Rights which in the opinion of such underwriters can be so sold, such amount to be allocated ratably among the respective holders thereof based on the amount of securities held by each such holder (or, if any holder does not request to include its ratable share, such excess shall be entitled allocated ratably among those holders requesting to request no include more than three their allocable share); and
(iv) fourth, after all securities that the Demand Registrations Holders, Other Holders and the Persons with Other Registration Rights propose to register, the greatest number of the Company, and in no event shall securities proposed to be registered by the Company for its own account, which in the opinion of such underwriters can be required so sold; provided that the Company shall have the right (the "Priority Right") to effect more than one receive priority over all holders of Registrable Securities and Persons with Other Registration Rights in any Demand Registration to be effected under this Section 3.1 with respect to securities that the Company proposes to include in any six month periodsuch registration for its own account by giving written notice of its election to exercise such Priority Right to the Requesting Holders; and thereafter, priority will be as set forth in (i)-(iii) above.
(d) In The Company shall be obligated to effect a maximum of two Demand Registrations on Form S-1 or Form S-2 (or similar long-form registrations) and a maximum of four registrations on Form S-3 (or similar short-form registrations) for the event Demand Holders. Any Demand Registration requested must be for a firmly underwritten public offering (to be managed by an underwriter or underwriters of recognized national standing selected by the Requesting Holders and reasonably acceptable to the Company). The Company shall not be obligated to effect any Demand Registration within a period of six months after the effective date of any previous Registration Statement. The Company shall not be obligated to effect any Demand Registration if it reasonably believes that the aggregate sales price of all securities proposed to be included in such Demand Registration will not equal or exceed $10 million (or $5 million if such Demand Registration requests the registration of all remaining Registrable Securities held by the Demand Holders) if such registration is effected on Form S-3 (or any successor form) or $20 million if such registration is effected on any other form. During any 12-month period, the Company may defer, not more than two times for a period not to exceed 90 days in the aggregate from each receipt of the request to file a Registration Statement for a Demand Registration, if the Board in good faith determines that such Demand Registration might reasonably be expected to have a materially adverse effect on any proposal or plan by the Company shall use or any of its reasonable best efforts Subsidiaries to maintain engage in any acquisition of assets (other than in the continuous effectiveness ordinary course of the applicable Registration Statement for a period of at least one year after the effective date thereof business) or such shorter period in which all Registrable Securities included any merger, consolidation, tender offer or other material transactions; provided that in such Registration Statement have actually been sold. For the avoidance of doubtevent, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company Requesting Holders shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Companyand, (B) the Registration Statement relating to if such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such requestwithdrawn, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are Demand Registration shall not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than count as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth aboveDemand Registration.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Demand Registrations. (a) At Subject to the conditions of this Section 8.1, if the Company shall receive at any time and after the date hereof a written request from time to time, the Holders’ Representative shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expensesHolder(s) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice forty percent (subject to paragraph (e40%) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by then outstanding that the Holders thereof in accordance with the methods of distribution elected by such Holders (Company file a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective registration statement under the Securities Act as promptly as practicable covering the registration of Registrable Securities having a proposed aggregate offering price to the public of at least $1,000,000, then the Company shall, within 30 days after the filing receipt thereof, give written notice of such request to all Holders and, subject to the limitations of Section 8.1(b), effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be registered.
(b) No securities If the Holder(s) requesting such registration intends to distribute the Registrable Securities covered by its request by means of an underwriting, such Holder(s) shall so advise the Company as a part of the request made pursuant to this Section 8.1 and the Company shall include such information in the written notice referred to in Section 8.1(a). In such event, the right of any Holder to include such Holder's Registrable Securities in such registration shall be included under any Demand Registration Statement related to an underwritten offering without conditioned upon such Holder's participation in such underwriting and the written consent inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject ) to the preceding sentence, if any of extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and underwriter or underwriters selected for such underwriting by the managing underwriter(s) of such underwritten offering advise Holder that initially requested the Holders in writing that it is their good faith opinion that the total number registration (which underwriter or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there underwriters shall be included in such offering reasonably acceptable to the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicableCompany), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively Company shall not be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required obligated to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registrationtwo registrations pursuant to this Section 8.1. Further, the Company shall use its reasonable best efforts not be obligated to maintain take any action to effect any registration pursuant to this Section 8.1 until the continuous effectiveness earliest to occur of:
(i) the date that is three years after the date hereof, (ii) the first date as of which any other shareholder of the applicable Registration Statement for Company exercises a period of at least one year demand registration, or (iii) 180 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For of the avoidance registration statement pertaining to the first underwritten public offering of doubt, the foregoing sentence is not intended to limit the obligation securities of the Company to maintain for its own account. Further, the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall not be entitled obligated to postpone (but not more than once in any six-month period), for effect a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement demand registration pursuant to this Section 8.1 if the Company delivers furnishes to the Holders’ Representative Holders a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying stating that, in the good faith judgment of the Board of Directors of the CompanyBoard, such registration, offering or use it would reasonably be expected seriously detrimental to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required its shareholders for such registration to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawneffected at such time, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for have the purposes right to defer the filing of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 period of not more than 120 days after receipt of the request of the Holder or Holders under this Section 8.
1. The Company shall give written notice to the Securities Act) or Holders of any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and demand made by other holders of securities of the Company shall file, as promptly as reasonably practicable after the execution and delivery for registration of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))securities.
Appears in 1 contract
Demand Registrations. (ai) At Subject to Sections 2.1(b), 2.1(e) and 2.3 below, (x) at any time and from time to time, in the Holders’ Representative case of any Cohen Party, (y) at any time and from time to time after the earli▇▇ ▇▇ (A) six (6) months following the closing of an IPO and (B) the first anniversary of the date hereof in the case of any GSCP Party or (z) at any time and from time to time after six (6) months following the closing of an IPO in the case of any other Holder, such Holder or a group of Holders shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company toto file a registration statement under the Securities Act covering all or any permitted part of their respective Registrable Securities, by delivering a written request therefor to the Company specifying the number of Registrable Securities to be included in such registration by such Holder or group of Holders and the intended method of distribution thereof. All requests pursuant to this Section 2.1(a)(i) are referred to herein as "Demand Registration Requests," and the terms registrations requested are referred to herein as "Demand Registrations." As promptly as practicable, but no later than ten days after receipt of this Agreementa Demand Registration Request, register under the Company shall give written notice of such Demand Registration Request to all Holders of record of Registrable Securities.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Holder(s) which requested such registration and (y) the Registrable Securities of any Holder which shall have made a written request to the Company for registration thereof in accordance with the provisions of Section 2.2. (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Holder) within 30 days after the receipt of written notice (or, 15 days if, at the request of the Holder(s) which requested such registration, the Company states in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on Form S-3 )
(iii) The Company shall, as expeditiously as possible following a Demand Registration Request, use its best efforts to (x) effect such registration under the Securities Act of the Registrable Securities which the Company has been so requested to register, for distribution in accordance with such intended method of distribution, and (y) if requested by the Holder(s) which requested such registration, obtain acceleration of the effective date of the registration statement relating to such registration.
(b) The Demand Registration rights granted to the Holders in Section 2.1(a) are subject to the limitations set forth in Section 4.6(a) and to the following limitations: (i) each Demand Registration Request must include Registrable Securities either (A) having an aggregate market value of at least $15,000,000, which market value shall be determined by multiplying the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered included in the Demand Registration by the proposed per share offering price thereof or (a “Demand Registration”); providedB) the case of an IPO, however, in an amount equal to fifty percent of the number of shares of Common Stock which may be acquired upon the conversion of all of the shares of Preferred Stock presently held by the GSCP Parties (the "Preferred Stock Conversion Shares") (provided that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either limitations set forth in this clause (i) shall not be in effect at least 20% of any time the aggregate number of Holders' Registrable Securities then held by all would otherwise be able to be sold under Rule 144 under the Securities Act but for the Company's failure to comply with the information requirements thereunder, unless at such time, the Company's outside counsel (which shall be reasonably acceptable to the Holders or requesting such registration) delivers a written opinion of counsel to such Holders to the effect that such Holders' Registrable Securities may be publicly offered and sold without registration under the Securities Act); (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts required to cause such Registration Statement a registration pursuant to Section 2.1(a)(i) to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for within a period of at least one year 180 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation any other registration statement of the Company to maintain the continuous effectiveness of the Short-(other than a registration statement on Form Registration contemplated by Section 2.1(hS-8); (iii) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registrationin its good faith judgment, offering determines that any registration of Registrable Securities should not be made or use continued because it would reasonably be expected to materially adversely affect or materially interfere with or materially adversely affect, any bona fide and imminent material financing financing, acquisition, disposition of assets or stock, corporate reorganization or merger or other transaction involving the Company or any imminent material transaction under consideration by the Company of its subsidiaries or would require the Company to make public disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature public disclosure of which would materially adversely affect not otherwise then be required and which would have a material adverse effect upon the Company or the value of the Company.
's Stock (f) The Holders’ Representative shall have the right to notify a "Valid Business Reason"), the Company that it has determined that the Registration Statement may postpone filing a registration statement relating to a Demand Registration be abandoned or withdrawnRequest until such Valid Business Reason no longer exists, but in no event for more than six months, and, in which event case a registration statement has been filed relating to a Demand Registration Request, if the Valid Business Reason has not resulted from actions taken by the Company, the Company may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement; and the Company shall promptly abandon give written notice of its determination to postpone or withdraw such Registration Statement.
(g) No request for a registration will count for the purposes statement and of the limitations fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in Section 2.1(c) if: each case, promptly after the occurrence thereof; and (Aiv) the Holders’ Representative determines offering of Registrable Securities requested to be registered pursuant to Section 2.1(a)(i) shall be pursuant to a firm commitment underwritten offering unless the Company has previously sold Registrable Securities pursuant to a registration statement under the Securities Act. If the Company shall give any notice of postponement or withdrawal of any registration statement, the Company shall not, during the period of postponement or withdrawal, register any Common Stock, other than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in good faith effect) or a registration on any registration form that does not permit secondary sales. Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw the proposed any registration prior statement pursuant to the effectiveness clause (iii) above, such Holder will discontinue its disposition of the Registration Statement relating Registrable Securities pursuant to such request due to marketing conditions or regulatory reasons relating to registration statement and, if so directed by the Company, will deliver to the Company (Bat the Company's expense) the Registration Statement relating to all copies, other than permanent file copies, then in such request is not declared effective within 60 days Holder's possession of the date prospectus covering such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included that was in effect at the applicable time of receipt of such notice. If the Company shall have withdrawn or prematurely terminated a registration relating statement filed under Section 2.1(a)(i) (whether pursuant to such request, such registration is adversely affected by clause (iii) above or as a result of any stop order, injunction or other order or requirement of the SEC Commission or any other Governmental Entity governmental agency or court), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement, the Company shall, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (D) more but in no event later than 10% six months after the date of the postponement), use its best efforts to effect the registration under the Securities Act of the Registrable Securities requested covered by the Holders to be included in the withdrawn or postponed registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (statement in accordance with this Section 2.82.1 (unless the Holder(s) delivering the Demand Registration Request shall have withdrawn such request, in connection with any request which case the Company shall not be considered to have effected an effective registration for the purposes of this Agreement), and such registration shall not be withdrawn or postponed pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth clause (iii) above.
(hc) In addition The Company, subject to Sections 2.3 and 2.6, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), authorized but unissued shares of Common Stock or shares of Common Stock held by the Company as treasury shares; provided, however, that such -------- ------- inclusion shall be permitted only to the foregoingextent that it is pursuant to and subject to the terms of the underwriting agreement or arrangements, if any, entered into by the Holders exercising the Demand Registration rights granted to the Holders under Section 2.1(a)(i).
(d) Subject to any provisions in the Purchase Agreement or the Stockholder Agreement, the Company will use its reasonable best efforts managing underwriter for any Demand Registration shall be selected by the party or parties making the demand for such registration, provided that such underwriter shall be reasonably satisfactory to remain qualified for registration on Form S-3 the Company.
(including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Acte) or Notwithstanding any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery other provision of this Agreement, but not later no Person other than 30 days, such Short-Form Registration, which a Cohen Party or a GSCP Party shall constitute be entitled to make a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, Demand Reg▇▇▇▇▇tion Request pursuant to Rule 415 under this Section 2 until six (6) months following the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means closing of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))IPO.
Appears in 1 contract
Sources: Registration Rights Agreement (Pny Technologies Inc)
Demand Registrations. (ai) At Subject to Section 2.1(b) below, at any time and from time to timeafter the initial Equity Offering, a Holder or the Holders’ Representative Holders shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act covering all or a portion of Registrable Securities, by delivering a written request therefor to the Company specifying the number of Registrable Securities owned to be included in such registration by such Holders and the intended method of distribution thereof. All such requests by any Holder pursuant to this Section 2.1(a)(i) are referred to herein as “Demand Registration Requests,” and the registrations so requested by are referred to herein as “Demand Registrations” (with respect to any Demand Registration, the Holders making such demand for registration being referred to as the “Initiating Holders”). As promptly as practicable, but no later than ten days after receipt of a Demand Registration Request, the Company shall give written notice (the “Demand Exercise Notice”) of such Demand Notice Registration Request to be so registered all Holders of record of Registrable Securities.
(a “Demand Registration”); providedii) The Company, howeversubject to Sections 2.3 and 2.6, that shall include in a Demand Notice may only be made if Registration (x) the amount Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities requested which shall have made a written request to be registered is either the Company for inclusion in such registration (i) at least 20% of together with the aggregate Initiating Holders, the “Participating Holders”)(which request shall specify the maximum number of Registrable Securities then held intended to be disposed of by all Holders or (iisuch Participating Holders) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify within 60 days after the expected method or methods of disposition receipt of the applicable Registrable Securities. Following receipt Demand Exercise Notice (or, 30 days if, at the request of a Demand Noticethe Initiating Holders, the Company shall filestates in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form S-3).
(iii) The Company shall, as promptly expeditiously as reasonably practicable, possible but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.12.1(b), a Registration Statement relating use its commercially reasonable efforts to (x) effect such registration under the offer and sale Securities Act of the Registrable Securities which the Company has been so requested to be included therein by the Holders thereof register, for distribution in accordance with the methods such intended method of distribution elected and (y) if requested by the Majority Participating Holders, obtain acceleration of the effective date of the registration statement relating to such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofregistration.
(b) No securities shall be included under any Notwithstanding anything to the contrary in Section 2.1(a), the Demand Registration Statement related rights granted in Section 2.1(a) to an underwritten offering without the written consent of Holders are subject to the Holders’ Representative, except Registrable Securities requested following limitations: (i) the Company shall not be required to be included therein cause a registration pursuant to Section 2.1(a). Subject 2.1(a)(i) to be filed within 90 days or to be declared effective within a period of 180 days after the effective date of any other registration statement of the Company filed pursuant to the preceding sentenceSecurities Act; (ii) if the Company, if in its good faith judgment, determines that any registration of Registrable Securities should not be made or continued because it would materially interfere with any material financing, acquisition, corporate reorganization or merger or other transaction or event involving the Company or any of its subsidiaries or would otherwise not be in the Registrable Securities registered pursuant best interests of the Company (a “Valid Business Reason”), the Company may postpone filing a registration statement relating to a Demand Registration are to be sold in a firm commitment underwritten offeringRequest until such Valid Business Reason no longer exists, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and but in no event shall the Company avail itself of such right for more than 90 days, in the aggregate, in any period of 365 consecutive days (such period of postponement or withdrawal under this clause (ii), the “Postponement Period”); and the Company shall give notice of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof; (iii) the Company shall not be required obligated to effect more than one Demand Registration in under Section 2.1(a) for JWMA within any six month 365 day period.
; provided, however, the aggregate number of such Demand Registrations is unlimited; (div) In the event Company shall not be obligated to effect more than one Demand Registration under Section 2.1(a) for the Estate within any 365 day period; provided, however, the aggregate number of such Demand Registrations is unlimited; (v) the Company shall not be obligated to effect more than five Demand Registrations under Section 2.1(a) for JCL; (vi) the Company shall not be obligated to effect more than three Demand Registrations under Section 2.1(a) for M▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; and (vii) the Company shall not be required to effect a Demand RegistrationRegistration unless the Registrable Securities to be included in such registration either (A) have an aggregate anticipated offering price of at least $25,000,000 (based on the then-current market price of the Common Stock) or (B) consist of all remaining Registrable Securities. If the Company shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (ii) above, the Company shall use its reasonable best efforts to maintain not, during the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof postponement or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubtwithdrawal, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in register any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors equity security of the Company, such registrationother than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in effect). Each Holder of Registrable Securities agrees that, offering or use would reasonably be expected to materially adversely affect or materially interfere with upon receipt of any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify notice from the Company that it the Company has determined to withdraw any registration statement pursuant to clause (ii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement and, if so directed by the Company, will deliver to the Company (at the Company’s expense) all copies, other than permanent file copies, then in such Holder’s possession of the prospectus covering such Registrable Securities that was in effect at the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event time of receipt of such notice. If the Company shall promptly abandon have withdrawn or withdraw such Registration Statement.
prematurely terminated a registration statement filed under Section 2.1(a)(i) (gwhether pursuant to clause (ii) No request for registration will count for the purposes above or as a result of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement, the Company shall, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event later than three months after the date of the postponement or withdrawal), use its commercially reasonable efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the Initiating Holders shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of this Agreement).
(c) The Company, subject to Sections 2.3 and 2.6, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), (Di) authorized but unissued shares of Common Stock or shares of Common Stock held by the Company as treasury shares and (ii) any other shares of Common Stock which are requested to be included in such registration pursuant to the exercise of piggyback rights granted by the Company which are not inconsistent with the rights granted in, or otherwise conflict with the terms of, this Agreement (“Additional Piggyback Rights”); provided, however, that such inclusion shall be permitted only to the extent that it is pursuant to and subject to the terms of the underwriting agreement or arrangements, if any, entered into by the Participating Holders.
(d) In connection with any Demand Registration, if the Initiating Holders collectively represent the beneficial ownership of 10% or more of the outstanding Common Stock of the Company, such Initiating Holders shall have the right to designate the lead managing underwriter in connection with such registration and each other managing underwriter for such registration; provided that in each case, each such underwriter is reasonably satisfactory to the Company. In the case of the Initiating Holders collectively represent the beneficial ownership of less than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution outstanding Common Stock of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form RegistrationCompany, the Company shall use its reasonable best efforts have the right to keep designate the lead managing underwriter in connection with such Short-Form Registration effective with the SEC at all times registration and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to each other managing underwriter for such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (registration; provided that in each case, notwithstanding anything each such underwriter is reasonably satisfactory to the contrary in Section 2.1(d))Initiating Holders.
Appears in 1 contract
Demand Registrations. (ai) At Subject to Sections 2.1(b) and 2.3 below, at any time and from time to timetime after the closing of an IPO, each of the Holders’ Representative Permira Parties shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act covering all or any part of their respective Registrable Securities by delivering a written request therefor to the Company specifying the number of Registrable Securities owned by Holders and requested to be included in such registration by such Demand Notice Holder(s) and the intended method of distribution thereof. All such requests by the Permira Parties pursuant to be so registered (a this Section 2.1(a)(i) are referred to herein as “Demand Registration Requests,” and the registrations so requested are referred to herein as “Demand Registrations” (with respect to any Demand Registration, the Permira Party making such demand for registration being referred to as the “Initiating Holder”); provided. As promptly as practicable, however, that but no later than ten business days after receipt of a Demand Notice may only be Registration Request, the Company shall give written notice (the “Demand Exercise Notice”) of such Demand Registration Request to all Holders of record of Registrable Securities.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holder and (y) the Registrable Securities of any other Holder which shall have made if a written request to the amount Company for inclusion in such registration (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Holder) within 15 days after the receipt of the Demand Exercise Notice (or, 10 days if the Company states in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form S-3).
(iii) The Company shall, as expeditiously as possible, use its best efforts to (x) effect such registration under the Securities Act (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the Securities Act if so requested and if the Company is then eligible to use such a registration) of the Registrable Securities which the Company has been so requested to be registered is either register, for distribution in accordance with such intended method of distribution, and (y) if requested by the Initiating Holder or the Major Holder participating in such registration, obtain acceleration of the effective date of the registration statement relating to such registration.
(b) The Demand Registration rights granted in Section 2.1(a) to the Holders are subject to the following limitations: (i) each Demand Registration Request must include (A) Registrable Securities having an aggregate market value of at least 20% $50,000,000, which market value shall be determined by multiplying the number of Registrable Securities to be included in such Demand Registration by the Fair Market Value determined as of the date of the Demand Registration Request in respect of which such Demand Registration is made or (B) if the Fair Market Value of the aggregate number of Registrable Securities then Shares held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition a Permira Party as of the applicable Registrable Securities. Following receipt date of the Demand Registration Request has a Demand NoticeFair Market Value of less than $50,000,000, the Company shall file, as promptly as reasonably practicable, all (but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (eless than all) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected Shares held by such Holders Permira Party (a “Demand Registration Statement”provided that the limitations set forth in this clause (i) and shall use its reasonable best efforts not be in effect at any time the Holders’ Registrable Securities may not be sold pursuant to cause such Registration Statement to be declared effective Rule 144 under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent because of the Holders’ Representative, except Registrable Securities requested Company’s failure to comply with the information requirements thereunder); (ii) the Company will not be included therein pursuant required to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to file or effect a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for within a period of at least one year 90 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation any other registration statement of the Company to maintain effected in connection with an underwritten offering by the continuous effectiveness Company (provided that following the IPO, such period shall be a maximum of 180 days if, and only if, the Company would be in breach of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once underwriting agreement entered into in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in connection with the aggregate, 90 days during any twelve-month period), the filing IPO if it filed or initial effectiveness of, or suspend the use of, effected a Demand Registration Statement if before 180 days following the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer effective date of the Company certifying that, registration statement effected in connection with the good faith judgment of IPO); and (iii) if the Board of Directors of the Company, such registrationin its good faith judgment, offering determines that any registration of Registrable Securities should not be made or use continued because it would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of financing, acquisition, corporate reorganization or merger or other transaction involving the Company or any imminent of its subsidiaries (a “Valid Business Reason”), the Company may postpone filing a registration statement relating to a Demand Registration Request until such Valid Business Reason no longer exists, but in no event for more than three months (such period of postponement under this clause (iii), the “Postponement Period”); and the Company shall give written notice of its determination to postpone a registration statement and of the fact that the Valid Business Reason for such postponement no longer exists, in each case, promptly after the occurrence thereof; provided, however, the Company shall not be permitted to postpone a registration statement after the expiration of any Postponement Period until twelve months after the expiration of such Postponement Period without the prior written approval of the Permira Parties. If the Company shall give any notice of postponement of any registration statement, the Company shall not, during the period of postponement, register any Common Stock, other than pursuant to a registration statement filed in connection with a “material transaction financing” constituting a Valid Business Reason or on Form S-4 or S-8 (or an equivalent registration form then in effect). If the Company shall give any notice of postponement of a registration statement, the Company shall, at such time as the Valid Business Reason that caused such postponement no longer exists (but in no event later than three months after the date of the postponement), use its best efforts to effect the registration under consideration the Securities Act of the Registrable Securities covered by the postponed registration statement in accordance with this Section 2.1 (unless the Initiating Holder shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of this Agreement).
(c) The Company, subject to Sections 2.3 and 2.6, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), (i) authorized but unissued shares of Common Stock or shares of Common Stock held by the Company or would require the disclosure as treasury shares and (ii) any other shares of information that has not been, and is not otherwise required Common Stock which are requested to be, disclosed be included in such registration pursuant to the publicexercise of piggyback rights granted by the Company after the date hereof which are not inconsistent with the rights granted in, or otherwise conflict with the premature disclosure terms of, this Agreement (“Additional Piggyback Rights”) provided, however, that such inclusion shall be permitted only to the extent that it is pursuant to and subject to the terms of which would materially adversely affect the Companyunderwriting agreement or arrangements, if any, entered into by the Initiating Holder.
(fd) The Holders’ Representative In connection with any Demand Registration, the Major Holder participating in such registration shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
designate (g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (Ai) the Holders’ Representative determines in good faith to withdraw the proposed lead managing underwriter for such registration prior to the effectiveness of the Registration Statement relating to and (ii) each other managing underwriter for such request due to marketing conditions or regulatory reasons relating registration, provided that each such underwriters are reasonably satisfactory to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Demand Registrations. (a) At any time From and from time to timeafter the expiration of the Initial Open Market Shares Restricted Period, the Holders’ Representative Additional Open Market Shares Restricted Period, the Warrant 1 Shares Restricted Period, and/or the Warrant 2 Shares Restricted Period, as applicable, subject to the terms and conditions hereof (x) solely during any period that the Company is then-ineligible under Applicable Law to register Registrable Securities on Form S-3 or, if the Company is so eligible but has failed to comply with its obligations under Section 4.3 or (y) following the expiration of the Company’s obligation to keep the Shelf Registration Statement continuously effective pursuant to Section 4.3(c), but only if there is no Shelf Registration Statement then in effect, any Demand Shareholders (“Requesting Shareholders”) shall have the right by delivering one or more be entitled to make an unlimited number of written notices to requests of the Company (each, a “Demand NoticeDemand”) to require for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders that equals or is greater than the Registrable Amount (a “Demand Registration” and such registration statement, a “Demand Registration Statement”). Thereupon, the Company towill, pursuant subject to the terms of this Agreement, use its commercially reasonable efforts to effect the registration as promptly as practicable under the Securities Act of:
(A) the Registrable Securities which the Company has been so requested to register under and by the Requesting Shareholders for disposition in accordance with the provisions intended method of disposition stated in such Demand;
(B) all other Registrable Securities which the Securities Act Company has been requested to register pursuant to Section 4.1(b), but subject to Section 4.1(g); and
(C) all shares of Company Common Stock which the number Company may elect to register in connection with any offering of Registrable Securities owned by Holders pursuant to this Section 4.1, but subject to Section 4.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and requested by such Demand Notice the additional shares of Company Common Stock, if any, to be so registered registered.
(a “b) A Demand Registration”); provided, however, that a Demand Notice may only be made if shall specify: (i) the amount aggregate number of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or in such Demand Registration, (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected intended method or methods of disposition in connection with such Demand Registration, to the extent then known, and (iii) the identity of the applicable Registrable SecuritiesRequesting Shareholder(s). Following Within ten (10) days after receipt of a Demand NoticeDemand, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days give written notice of such Demand to all other holders of Registrable Securities. The Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by which the Company of such Demand Notice has received a written request for inclusion therein within ten (10) days after the Company’s notice required by this paragraph has been given, subject to paragraph (e) Section 4.1(g). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2.14.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one A Demand Registration in any six month period.
(d) In the event of shall not be deemed to have been effected and shall not count as a Demand Registration, Registration (i) unless the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Demand Registration Statement with respect thereto has become effective and has remained effective for a period of at least one year after the effective date thereof hundred eighty (180) days or such shorter period in which all Registrable Securities included in such Demand Registration Statement have actually been sold. For sold or otherwise disposed of thereunder (provided, that such period shall be extended for a period of time equal to the avoidance period the holders of doubt, Registrable Securities refrain from selling any securities included in such registration statement at the foregoing sentence is not intended to limit the obligation request of the Company or the lead managing underwriter(s) pursuant to maintain the continuous effectiveness provisions of this Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to one hundred eighty (180) days after effectiveness, to any stop order, injunction or other order or requirement of the Short-Form Registration contemplated Commission or other Governmental Authority, other than by Section 2.1(hreason of any act or omission by the applicable Selling Shareholders.
(d) Demand Registrations shall be on such appropriate registration form of the Commission as required shall be selected by Section 2.1(h)the Company and reasonably acceptable to the Requesting Shareholders.
(e) The Company shall not be obligated to (i) subject to Section 4.1(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration for a period longer than one hundred eighty (180) days or (ii) effect any Demand Registration (A) within six (6) months of a “firm commitment” Underwritten Offering in which all Demand Shareholders were offered “piggyback” rights pursuant to Section 4.2 (subject to Section 4.2(b)) and at least fifty percent (50%) of the number of Registrable Securities requested by such Demand Shareholders to be included in such Demand Registration were included, (B) within six (6) months of the completion of any other Demand Registration (including, for the avoidance of doubt, any Underwritten Offering pursuant to any Shelf Registration Statement) or (C) if, in the Company’s reasonable judgment, it is not feasible for the Company to proceed with the Demand Registration because of the unavailability of audited or other required financial statements of the Company or any other Person; provided, that the Company shall use its commercially reasonable efforts to obtain such financial statements as promptly as practicable.
(f) The Company shall be entitled to (1) postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in upon written notice to the aggregate, 90 days during any twelve-month period), Demand Shareholders) the filing or initial the effectiveness ofof a registration statement for any Demand Registration, or (2) cause any Demand Registration Statement to be withdrawn and its effectiveness terminated and (3) suspend the use ofof the prospectus forming the part of any registration statement, in each case in the event of a Demand Registration Statement if Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period under clause (ii) of the definition thereof, the Company delivers shall deliver to the Holders’ Representative Demand Shareholders requesting registration a certificate signed by both either the Chief Executive Officer and Chief Financial Officer chief executive officer or the chief financial officer of the Company certifying that, in the good faith judgment of the Board Company, the conditions described in clause (ii) of Directors the definition of Blackout Period are met. Such certificate shall contain an approximation of the anticipated delay. Upon notice by the Company to the Demand Shareholders of any such determination, each Demand Shareholder covenants that, subject to Applicable Law, it shall keep the fact of any such notice strictly confidential, and, in the case of a Blackout Period pursuant to clause (ii)(y) of the definition of Blackout Period, promptly halt any offer, sale, trading or other Transfer by it or any of its Affiliates of any Registrable Securities for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration Statement, each prospectus included therein, and any amendment or supplement thereto by it and any of its Affiliates for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and, if so directed in writing by the Company, will deliver to the Company any copies then in the Demand Shareholder’s possession of the prospectus covering such registrationRegistrable Securities that was in effect at the time of receipt of such notice.
(g) If, offering or use in connection with a Demand Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its (their) opinion, the inclusion of all of the securities sought to be registered in connection with such Demand Registration would reasonably be expected to materially adversely affect or materially interfere with any bona fide the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and imminent material financing in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Demand Shareholders, which, in the opinion of the lead managing underwriter(s), can be sold without adversely affecting the success thereof, pro rata among such Demand Shareholders on the basis of the number of such Registrable Securities requested to be included by such Demand Shareholders; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or any imminent material transaction under consideration such other allocation method determined by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(fh) The Holders’ Representative shall have the right to notify the Company Any time that it has determined that the Registration Statement relating to a Demand Registration involves an Underwritten Offering, the Requesting Shareholder(s) shall select the investment banker(s) and manager(s) that will serve as managing underwriters (including which such managing underwriters will serve as lead or co-lead) and underwriters with respect to the offering of such Registrable Securities; provided, that such investment banker(s) and manager(s) shall be abandoned or withdrawn, in which event reasonably acceptable to the Company shall promptly abandon or withdraw (such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is acceptance not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b)unreasonably withheld, conditioned or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)delayed).
Appears in 1 contract
Sources: Framework Agreement (Walgreen Co)
Demand Registrations. (a) At any time and after the expiration of the periods set forth in the lock-up agreements executed in connection with the Underwriting Agreement (or earlier waiver of, or release from time to timesuch periods), either the Holders’ Representative shall have Welsh Majority or the right by delivering one or more written notices to Vestar Majority (the "Requesting Party") may request the Company (each, a “Demand Notice”) to require effect the Company to, pursuant to the terms of this Agreement, register registration under and in accordance with the provisions of the Securities Act of all or any portion of the number of Registrable Securities owned by Holders and requested held by such Demand Notice to be so registered Requesting Party on Form S-1 or any similar long-form registration (a “Demand Registration”"Long-Form Registrations"), or, if available, on Form S-3 or any similar short-form registration ("Short-Form Registrations"), for sale in the manner specified in such notice; provided, however, provided that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect have no obligation to any underwritten offering, or 30 days with respect effect a registration pursuant to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to 4(a) unless the offer and sale amount of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering would result in initial aggregate proceeds (determined at the number or dollar amount time of Registrable Securities and such Other Securities that the initial filing of the registration statement relating thereto) in the opinion excess of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) firstin the case of a Long-Form Registration statement, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
$25 million and (ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer case of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, $10 million (each of clause (i) and (ii) above, a "Threshold Amount"); provided further, that the Company Requesting Party may make a demand registration pursuant to this Section 4(a) if such demand registration is for the remaining Registrable Securities of such Requesting Party, even if such offering would result in initial aggregate proceeds (determined at the time of the initial filing of the registration statement relating thereto) of less than the applicable Threshold Amount. Each of the Welsh Majority and the Vestar Majority shall use its reasonable best efforts be entitled to keep such request an unlimited number of Short-Form Registrations (to the extent the Company is permitted to use Short-Form Registrations) and the Welsh Majority shall be entitled to request up to two (2) Long-Form Registrations and the Vestar Majority shall be entitled to request one (1) Long-Form Registration effective pursuant to this Section 4(a); provided that the Company's obligation with the SEC at all times and respect to any Shortsuch Long-Form Registration shall be re-filed upon its expirationdeemed satisfied only when a registration statement covering the Registrable Securities specified in the notice received from the Requesting Party for sale in accordance with the method of disposition specified by the Requesting Party shall have become effective and, if such method of disposition is a firm commitment underwritten public offering, at least 75% such Registrable Securities of the Requesting Party specified in such notice shall have been sold pursuant thereto, unless the reason the registration statement fails to become effective, or the effectiveness is not maintained, is due to the fault of the Requesting Party; provided further that in the case that the registration statement fails to become effective, or the effectiveness is not maintained, due to the fault of the Requesting Party, and such Requesting Party agrees to pay all expenses incurred by it or the Company in connection with such withdrawn registration, such registration shall cooperate in any shelf takenot count against the number of Long-down Form Registrations to which the Requesting Party is entitled. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 4(a) (A) with respect to a Long-Form Registration, within 180 days after the effective date of a Long-Form Registration filed by amending the Company or supplementing (B) with respect to a Short-Form Registration, within 90 days after the Prospectus related to such effective date of a Short-Form Registration as filed by the Company, provided that in either case a request may be reasonably made before the end of such 90 or 180 day period, as applicable, in connection with a firm commitment underwritten public offering in which the Investors shall have been entitled to join pursuant to this Section 4 or Section 5 hereof and in which there shall have been effectively registered not less than 75% of the Registrable Securities as to which registration shall have been so requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))Investors.
Appears in 1 contract
Sources: Securityholders Agreement (Valor Communications Group Inc)
Demand Registrations. (a) At Subject to the terms and conditions hereof, solely during any time and from time period when the Company is not eligible under Applicable Law to timeregister Registrable Securities on Form S-3 pursuant to Section 1.3, the Holders’ Representative any Demand Stockholders (“Requesting Stockholders”) shall have the right by delivering one or more be entitled to make a number of written notices to requests of the Company (each, a “Demand NoticeDemand”) to require set forth in Section 1.1(c) hereof for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Stockholders that equals or is greater than the Registrable Amount (a “Demand Registration”). Thereupon the Company towill, pursuant subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register under and by the Requesting Stockholders for disposition in accordance with the provisions intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which the Securities Act Company has been requested to register pursuant to Section 1.1(b), but subject to Section 1.1(g); and
(iii) all shares of Company Common Stock which the number Company may elect to register in connection with any offering of Registrable Securities owned by Holders pursuant to this Section 1.1, but subject to Section 1.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and requested by such Demand Notice the additional shares of Company Common Stock, if any, to be so registered registered.
(a “b) A Demand Registration”); provided, however, that a Demand Notice may only be made if shall specify (i) the amount aggregate number of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or in such Demand Registration, (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected intended method or methods of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the applicable Registrable SecuritiesRequesting Stockholder(s). Following Within three (3) Business Days after receipt of a Demand NoticeDemand, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days give written notice of such Demand to all other Holders of Registrable Securities. The Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by which the Company of such Demand Notice has received a written request for inclusion therein from the Holder thereof within ten (10) days after the Company’s notice required by this paragraph has been given, subject to paragraph (e) Section 1.1(g). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2.11.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively Requesting Stockholders shall be entitled have the right to request only a total of up to three (3) Demand Registrations; provided that no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one (1) Demand Registration may be made in any six month (6)-month period.
(d) In the event of . A Demand Registration shall not be deemed to have been effected and shall not count as a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement (i) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least one year after the effective date thereof hundred eighty (180) days or such shorter period in which all Registrable Securities included in such Demand Registration Statement have actually been sold. For sold thereunder (provided that such period shall be extended for a period of time equal to the period the Holder of Registrable Securities refrains from selling any securities included in such registration statement at the request of the Company or the lead managing underwriter(s) pursuant to the provisions of this Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to one hundred eighty (180) days after effectiveness, to any stop order, injunction or other order or requirement of the Commission or other Governmental Authority, other than by reason of any act or omission by the applicable Selling Stockholders.
(d) Demand Registrations shall be on such appropriate registration form of the Commission as shall be selected by the Company and reasonably acceptable to the Requesting Stockholders.
(e) The Company shall not be obligated to (i) subject to Section 1.1(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration for a period longer than one hundred eighty (180) days or (ii) effect any Demand Registration (A) within six months of a “firm commitment” Underwritten Offering in which all Demand Stockholders were offered “piggyback” rights pursuant to Section 1.2 (subject to Section 1.2(b)) and at least 90% of the number of Registrable Securities requested by such Requesting Stockholders to be included in such Demand Registration were included and sold or (B) within six months of the completion of any other Demand Registration (including, for the avoidance of doubt, the foregoing sentence is not intended any Underwritten Offering pursuant to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form any Shelf Registration contemplated by Section 2.1(h) as required by Section 2.1(hStatement).
(ef) The Company shall be entitled to postpone (but not more than once in upon written notice to the Requesting Stockholders and any six-month periodother Holders whose Registrable Securities are covered by such Demand pursuant to Section 1.1(b), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), ) the filing or initial the effectiveness of, or suspend the use of, of a registration statement for any Demand Registration Statement if in the event of a Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period, the Company delivers shall deliver to the Holders’ Representative Requesting Stockholders requesting registration and any other Holders whose Registrable Securities are covered by such Demand pursuant to Section 1.1(b) a certificate signed by both either the Chief Executive Officer and Chief Financial Officer chief executive officer or the chief financial officer of the Company certifying that, in the good faith judgment of the Board Company, the conditions described in the definition of Directors Blackout Period are met.
(g) If, in connection with a Demand Registration or Shelf Offering that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its (their) reasonable opinion, the inclusion of all of the Companysecurities sought to be registered in connection with such Demand Registration would adversely affect the success thereof, then the Company shall include in such registration statement only such securities as the Company is reasonably advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first, pro rata among the Holders that have requested to participate in such Demand Registration based on the relative number of Registrable Securities then held by each such Holder; (ii) second, securities the Company proposes to sell for its own account; and (iii) third, only if all of the securities referred to in clauses (i) and (ii) have been included in such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing all other securities of the Company duly requested to be included in such registration statement by other persons, pro rata on the basis of the amount of such other securities requested to be included or any imminent material transaction under consideration such other allocation method determined by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(fh) The Holders’ Representative shall have the right to notify the Company Any time that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawnShelf Offering involves an Underwritten Offering, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes Holders of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% a majority of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested then held by the Holders who have requested to participate in such Demand Registration or Shelf Offering shall select the investment banker(s) and manager(s) that will serve as managing underwriters (including which such managing underwriters will serve as lead or co-lead) and underwriters with respect to the offering of such Registrable Securities; provided that such investment banker(s) and manager(s) shall be subject to the prior written consent of the Company, not to be included in the registration are not so included pursuant to Section 2.1(b)unreasonably withheld, conditioned or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth abovedelayed.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Sources: Investor and Registration Rights Agreement (AST SpaceMobile, Inc.)
Demand Registrations. (a) At any time and from time to time, the Holders’ Representative shall have the right by delivering one or more written notices Subject to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms conditions of this AgreementSection 3.2, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to at any underwritten offering, time receive a written request from the Initiating Series C Holders or 30 days with respect to any other offering, after receipt by the Initiating Series B Holders or the Initiating Series A Holders or the Initiating Fund Holders or the Initiating Investor Holders that the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), file a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective registration statement under the Securities Act as promptly as practicable covering the registration of at least twenty percent (20%) of the shares held by such holders for the first registered offering of the Company (or any lesser percentage if the anticipated aggregate offering price, net of the underwriting discounts and commissions, would exceed $10,000,000), or any amount of Ordinary Shares after the filing first registered offering of the Company, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders and Fund Holders, and subject to the limitations of this Section 3.2, use its best efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities and Fund Shares that the Holders and Fund Holders request to be registered. The Company shall only be required to effect one (1) registration under this Subsection 3.2(a) for each of the Initiating Series C Holders, Initiating Series B Holders, Initiating Series A Holders Initiating Fund Holders and Initiating Investor Holders.
(b) No securities shall be included under any Demand Registration Statement related If the Initiating Series C Holders or the Initiating Series B Holders or the Initiating Series A Holders or the Initiating Fund Holders or the Initiating Investor Holders intend to an underwritten offering without distribute the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein or Fund Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 2.1(a3.2(a) and the Company shall include such information in the written notice referred to in Section 3.2(a). Subject In such event, the right of any Holder or Fund Holder to include its Registrable Securities or Fund Shares in such registration shall be conditioned upon such Holder’s and Fund Holders’ participation in such underwriting and the inclusion of such Holder’s Registrable Securities and Fund Holders’ Fund Shares in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the preceding sentenceextent provided herein. All Holders and Fund Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 3.2, if any the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and Fund Shares) then the managing underwriter(s) of such underwritten offering Company shall so advise the all Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities Fund Holders of Fund Shares which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the opinion underwriting shall be allocated to the Holders of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, Fund Holders of Fund Shares on a pro rata (if applicable), basis based on the number of Registrable Securities Beneficially Owned or Fund Shares held by each all such Holder; and
Holders or Fund Holders (ii) second, among any holders of Other Securities, pro rata, based on including the number of Other Initiating Holders). Any Registrable Securities Beneficially Owned by each or Fund Shares excluded or withdrawn from such holderunderwriting shall be withdrawn from the registration.
(c) The Holders collectively Company shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company not be required to effect more than one Demand Registration in any six month period.a registration pursuant to this Section 3.2:
(di) In the event of a Demand Registration, the Company shall use its reasonable best efforts prior to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year six months after the effective date thereof of a registration; or
(ii) after the Company has effected five (5) registrations pursuant to subsection 3.2(a), and such registrations have been declared or such shorter ordered effective; or
(iii) during the period in which all Registrable Securities included in such Registration Statement have actually been sold. For starting with the avoidance date of doubtfiling of, and ending on the date one hundred eighty (180) days following the effective date of, the foregoing sentence is not intended registration statement pertaining to limit the obligation of Initial Offering; provided that the Company makes reasonable good faith efforts to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).cause such registration statement to become effective;
(eiv) The Company shall be entitled if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month periodSection 3.2(a), the filing or initial effectiveness of, or suspend Company gives notice to the use of, a Demand Registration Statement Holders of the Company’s intention to make its Initial Offering within ninety (90) days; or
(v) if the Company delivers shall furnish to Holders and the Holders’ Representative Funds Holders requesting a registration statement pursuant to this Section 3.2, a certificate signed by both the Chief Executive Officer and Chief Financial Officer Chairman of the Company certifying that, Board stating that in the good faith judgment of a majority of the disinterested members of the Board of Directors of the Company, such registration, offering or use it would reasonably be expected seriously detrimental to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required its shareholders for such registration statement to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawneffected at such time, in which event the Company shall promptly abandon or withdraw have the right to defer such Registration Statement.
filing for a period of not more than ninety (g90) No request for registration will count for the purposes days after receipt of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness request of the Registration Statement relating Initiating Holders; provided that such right to such delay a request due to marketing conditions or regulatory reasons relating to shall be exercised by the Company, (B) the Registration Statement relating to such request is Company not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified once in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied twelve (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.812) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth abovemonth period.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Demand Registrations. (a) At (i) Subject to Sections 2.1(b) and 2.3 below, at any time and from time to timetime after the closing of an IPO and the delivery by Cabot to the Company of written notice, pursuant to Section 2.6 of the Holders’ Representative IPO and Distribution Agreement, that Cabot no longer intends to proceed with or complete the Distribution (the "Registration Rights Trigger Date"), Cabot shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act covering all or any part of its Registrable Securities, by delivering a written request therefor to the Company specifying the number of Registrable Securities owned to be included in such registration by Holders Cabot and the intended method of distribution thereof. All such requests by Cabot pursuant to this Section 2.1(a)(i) are referred to herein as "Demand Registration Requests," and the registrations so requested by are referred to herein as "Demand Registrations" (with respect to any Demand Registration, the Holder making such demand for registration being referred to as the "Initiating Holder"). As promptly as practicable, but no later than ten days after receipt of a Demand Registration Request, the Company shall give written notice (the "Demand Exercise Notice") of such Demand Notice Registration Request to be so registered all Holders of record of Registrable Securities.
(a “Demand Registration”); providedii) The Company, howeversubject to Sections 2.3 and 2.6, that shall include in a Demand Notice may only be made if Registration (x) the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate Initiating Holder and (y) the Registrable Securities of any other Holder which shall have made a written request to the Company for inclusion in such registration (which request shall specify the maximum number of Registrable Securities then held intended to be disposed of by all Holders or (iisuch Holder) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify within 30 days after the expected method or methods of disposition receipt of the applicable Registrable Securities. Following receipt Demand Exercise Notice (or, 15 days if, at the request of a Demand Noticethe Initiating Holder or the Major Holder participating in such registration, the Company shall filestates in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form S-3).
(iii) The Company shall, as promptly expeditiously as reasonably practicablepossible, but not later thanuse its best efforts to (x) effect such registration under the Securities Act (including, 60 days with respect without limitation, by means of a shelf registration pursuant to any underwritten offering, or 30 days with respect to any other offering, after receipt by Rule 415 under the Securities Act if so requested and if the Company of is then eligible to use such Demand Notice (subject to paragraph (ea registration) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities which the Company has been so requested to be included therein by the Holders thereof register, for distribution in accordance with such intended method of distribution, and (y) if requested by the methods Initiating Holder or the Major Holder participating in such registration, obtain acceleration of distribution elected by the effective date of the registration statement relating to such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofregistration.
(b) No securities shall be included under any The Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to rights granted in Section 2.1(a). Subject ) to the preceding sentence, if Holders are subject to the following limitations: (i) with respect to any registration in respect of the Registrable Securities registered pursuant to a Demand Registration are to be sold Request initiated by a transferee of Cabot, such registration statement must include shares of Common Stock representing, in a firm commitment underwritten offeringthe aggregate (based on the Common Stock included in such registration by Cabot), and in excess of 20% of the managing underwriter(ssum of (x) the amount of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount shares of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceedingheld, in the aggregate, 90 by Cabot and its transferees immediately prior to such registration plus (y) the amount of shares of Common Stock obtainable upon the conversion of Common Stock Equivalents held, in the aggregate, by Cabot and their transferees immediately prior to such registration; (ii) the Company shall not be required to cause a registration pursuant to Section 2.1(a)(i) to be declared effective within a period of 180 days during after the effective date of any twelve-month period), registration statement of the filing or initial effectiveness of, or suspend the use of, Company effected in connection with a Demand Registration Statement Request; and (iii) if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registrationin its good faith judgment, offering determines that any registration of Registrable Securities should not be made or use continued because it would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of financing, acquisition, corporate reorganization or merger or other transaction involving the Company or any imminent material transaction under consideration by of its subsidiaries (a "Valid Business Reason"), (x) the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement may postpone filing a registration statement relating to a Demand Registration Request until such Valid Business Reason no longer exists, but in no event for more than three months, and (y) in case a registration statement has been filed relating to a Demand Registration Request, if the Valid Business Reason has not resulted from actions taken by the Company, the Company may cause such registration statement to be abandoned withdrawn and its effectiveness terminated or withdrawnmay postpone amending or supplementing such registration statement until such Valid Business Reason no longer exists, but in which no event for more than three months (such period of postponement or withdrawal under subclauses (x) or (y) of this clause (iv), the "Postponement Period"); and the Company shall promptly abandon give written notice of its determination to postpone or withdraw such Registration Statement.
(g) No request for a registration will count for the purposes statement and of the limitations fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in Section 2.1(c) if: each case, promptly after the occurrence thereof; provided, however, the Company shall not be permitted to postpone or withdraw a registration statement after the expiration of any Postponement Period until twelve months after the expiration of such Postponement Period without the prior written approval of Cabot. If the Company shall give any notice of postponement or withdrawal of any registration statement, the Company shall not, during the period of postponement or withdrawal, register any Common Stock, other than pursuant to a registration statement on Form S-4 or S-8 (A) or an equivalent registration form then in effect). Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Holders’ Representative determines in good faith Company that the Company has determined to withdraw the proposed any registration prior statement pursuant to the effectiveness clause (iii) above, such Holder will discontinue its disposition of the Registration Statement relating Registrable Securities pursuant to such request due to marketing conditions or regulatory reasons relating to registration statement and, if so directed by the Company, will deliver to the Company (Bat the Company's expense) the Registration Statement relating to all copies, other than permanent file copies, then in such request is not declared effective within 60 days Holder's possession of the date prospectus covering such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included that was in effect at the applicable time of receipt of such notice. If the Company shall have withdrawn or prematurely terminated a registration relating statement filed under Section 2.1(a)(i) (whether pursuant to such request, such registration is adversely affected by clause (iii) above or as a result of any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement, the Company shall, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (D) more but in no event later than 10% three months after the date of the postponement or withdrawal), use its best efforts to effect the registration under the Securities Act of the Registrable Securities requested covered by the Holders withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the Initiating Holder shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of this Agreement).
(c) The Company, subject to Sections 2.3 and 2.6, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), (i) authorized but unissued shares of Common Stock or shares of Common Stock held by the Company as treasury shares and (ii) any other shares of Common Stock which are requested to be included in such registration pursuant to the registration exercise of piggyback rights granted by the Company after the date hereof which are not so included inconsistent with the rights granted in, or otherwise conflict with the terms of, this Agreement ("Additional Piggyback Rights") provided, however, that such inclusion shall be permitted only to the extent that it is pursuant to Section 2.1(b), or (E) and subject to the conditions to closing specified in any terms of the underwriting agreement or purchase agreement arrangements, if any, entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses Initiating Holder.
(in accordance with Section 2.8d) in In connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Demand Registration, the Major Holder participating in such registration shall have the right to designate the lead managing underwriter, and subject to the next sentence, each other managing underwriter for such registration, provided that each such other managing underwriter is reasonably satisfactory to the Company, it being understood and agreed that any managing underwriter that participates in the Company's IPO shall be satisfactory to the Company. The Company shall use its reasonable best efforts have the right to keep designate one managing underwriter other than the lead managing underwriter in any such Short-Form Registration effective with registration, provided that such other managing underwriter is reasonably satisfactory to the SEC at all times Major Holder, it being understood and agreed that any Short-Form Registration managing underwriter that participates in the Company's IPO shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything satisfactory to the contrary in Section 2.1(d))Major Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Cabot Microelectronics Corp)
Demand Registrations. (a) At From and after the expiration of the Restricted Period, subject to the terms and conditions hereof (x) solely during any time and from time period that the Company is then-ineligible under Applicable Law to timeregister Registrable Securities on Form S-3 pursuant to Section 5.3 or, if the Holders’ Representative Company is so eligible but has failed to comply with its obligations under Section 5.3 or (y) following the expiration of the Company’s obligation to keep the Shelf Registration Statement continuously effective pursuant to Section 5.3(c), but only if there is no Shelf Registration Statement then in effect, any Demand Shareholders (“Requesting Shareholders”) shall have be entitled to make, in the right by delivering one or more aggregate across all Demand Shareholders, three (3) written notices to requests of the Company (each, a “Demand NoticeDemand”) to require for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders that equals or is greater than the Registrable Amount (a “Demand Registration”). Thereupon the Company towill, pursuant subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register under and by the Requesting Shareholders for disposition in accordance with the provisions intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which Company has been requested to register pursuant to Section 5.1(b), but subject to Section 5.1(g); and
(iii) all shares of Ampco Common Stock which the Securities Act the number Company may elect to register in connection with any offering of Registrable Securities owned by Holders pursuant to this Section 5.1, but subject to Section 5.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and requested by such Demand Notice the additional shares of Ampco Common Stock, if any, to be so registered registered.
(a “b) A Demand Registration”); provided, however, that a Demand Notice may only be made if shall specify: (i) the amount aggregate number of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or in such Demand Registration, (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected intended method or methods of disposition in connection with such Demand Registration, to the extent then known, and (iii) the identity of the applicable Registrable SecuritiesRequesting Shareholder(s). Following Within three (3) Business Days after receipt of a Demand NoticeDemand, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days give written notice of such Demand to all other holders of Registrable Securities. The Company shall include in the registration statement for such Demand Registration all Registrable Securities with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by which the Company of such Demand Notice has received a written request for inclusion therein within ten (10) days after the Company’s notice required by this paragraph has been given, subject to paragraph (e) Section 5.1(g). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2.15.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one A Demand Registration in any six month period.
(d) In the event of shall not be deemed to have been effected and shall not count as a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement (i) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least one year after the effective date thereof hundred eighty (180) days or such shorter period in which all Registrable Securities included in such Registration Statement registration statement have actually been sold. For the avoidance of doubtsold thereunder (provided, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company that such period shall be entitled to postpone (but not more than once in any six-month period), extended for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers equal to the Holders’ Representative a certificate signed by both period the Chief Executive Officer and Chief Financial Officer holder of Registrable Securities refrains from selling any securities included in such registration statement at the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing request of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed lead managing underwriter(s) pursuant to the public, the premature disclosure provisions of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceedthis Agreement), (Cii) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such requestif, after it has become effective, such registration is adversely affected by statement becomes subject, prior to one hundred eighty (180) days after effectiveness, to any stop order, injunction or other order or requirement of the SEC Commission or other Governmental Entity Authority such that no sales are possible thereunder for a period of ten consecutive days or courtmore, (D) more other than 10% by reason of the Registrable Securities requested any act or omission by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), applicable Selling Shareholders or (Eiii) if the conditions to closing specified in any the underwriting agreement or purchase agreement agreement, if any, entered into in connection with the such registration relating to such request are not satisfied (or waived, other than as a result solely by reason of a material default or breach thereunder by failure on the applicable Holders). Notwithstanding anything to part of the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth aboveSelling Shareholders.
(hd) In addition Demand Registrations shall be effected through the filing of such appropriate registration statement form of the Commission as shall be selected by the Company and reasonably acceptable to the foregoingRequesting Shareholders.
(e) The Company shall not be obligated to (i) subject to Section 5.1(c), maintain the Company will use its reasonable best efforts effectiveness of a registration statement under the Securities Act filed pursuant to remain qualified a Demand Registration, for registration on Form S-3 a period longer than one hundred eighty (180) days or (ii) effect any Demand Registration (A) within six (6) months of a “firm commitment” Underwritten Offering in which all Demand Shareholders were offered “piggyback” rights pursuant to Section 5.2 (subject to Section 5.2(b)) and at least 75% of the number of Registrable Securities requested by such Demand Shareholders to be included in such Demand Registration were included and sold, (B) within six (6) months of the completion of any other Demand Registration (including, without limitationfor the avoidance of doubt, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Actany Marketed Underwritten Offering pursuant to any Shelf Registration Statement) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”C) and if, in the Company’s reasonable judgment, it is not feasible for the Company shall file, as promptly as reasonably practicable after to proceed with the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution Demand Registration because of the Registrable Securities in accordance with the methods unavailability of distribution elected by the Holdersaudited or other required financial statements or other required information; provided, including by means of an underwritten offering. Upon filing a Short-Form Registration, that the Company shall use its reasonable best efforts to keep obtain such Short-Form Registration effective with the SEC at all times and any Short-Form Registration financial statements or information as promptly as practicable.
(f) The Company shall be re-filed entitled to postpone (upon its expirationwritten notice to the Demand Shareholders) the filing or the effectiveness of a registration statement for any Demand Registration in the event of a Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period under clause (b) of the definition thereof, and the Company shall cooperate deliver to the Demand Shareholders requesting registration a certificate signed by either the chief executive officer or the chief financial officer of the Company certifying that the conditions described in clause (b) of the definition of Blackout Period are met.
(g) If, in connection with a Demand Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its (their) opinion, the inclusion of all of the securities sought to be registered in connection with such Demand Registration would adversely affect the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority:
(i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Demand Shareholders (or any shelf takeother Altor Investor (with respect to its Registrable Securities)), which, in the opinion of the lead managing underwriter(s), can be sold without adversely affecting the success thereof, pro rata among such Demand Shareholders (and other Investors) on the basis of the number of such Registrable Securities owned by such Demand Shareholders (and other Investors);
(ii) second, up to the number of Registrable Securities requested to be included in such Demand Registration by other holders of Registrable Securities, pro rata on the basis of the amount of such Registrable Securities owned by such holders;
(iii) third, securities the Company proposes to sell; and
(iv) fourth, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or such other allocation method determined by the Company.
(h) Any time that a Demand Registration involves an Underwritten Offering, the Company shall select the investment banker(s) and manager(s) that will serve as managing underwriters (including which such managing underwriters will serve as lead or co-down by amending or supplementing lead) and underwriters with respect to the Prospectus related to offering of such Short-Form Registration as may Registrable Securities; provided, that such investment banker(s) and manager(s) shall be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything acceptable to the contrary in Section 2.1(d)Requesting Shareholders (such acceptance not to be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Sources: Shareholder Support Agreement (Ampco Pittsburgh Corp)
Demand Registrations. (ai) At Subject to Sections 5.1(b) and 5.2 below, at any time and from time to time, the Holders’ Representative Holders shall have the right by delivering one or more written notices at any time following the three month anniversary of the Closing Date and prior to the Company (eachJanuary 1, a “Demand Notice”) 2011 to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act covering an aggregate number of Registrable Securities of not less than 10% of the total position of Holders at closing (or, if less, all remaining securities so held) (as such number may be adjusted for any stock dividend, stock split or combination of shares or in connection with a reclassification, recapitalization, merger, consolidation or other reorganization), by delivering a written request therefor to the Company specifying the number of Registrable Securities owned to be included in such registration by such Holders and the intended method of distribution of such Registrable Securities. All such requests by any Holder pursuant to this Section 5.1(a)(i) are referred to as “Demand Registration Requests,” and the registrations so requested by are referred to as “Demand Registrations” (with respect to any Demand Registration, the Holders making such demand for registration being referred to as the “Initiating Holders”). As promptly as practicable, but no later than five days after receipt of a Demand Registration Request, the Company shall give written notice (the “Demand Exercise Notice”) of such Demand Notice Registration Request to be so registered all Holders of record of Registrable Securities.
(a “Demand Registration”); providedii) The Company, howeversubject to Sections 5.3 and 5.6, that shall include in a Demand Notice may only be made if Registration (x) the amount Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities requested which shall have made a written request to be registered is either the Company for inclusion in such registration (itogether with the Initiating Holders, the “Participating Holders”) at least 20% of (which request shall specify the aggregate maximum number of Registrable Securities then held intended to be disposed of by all Holders or (iisuch Participating Holders) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify within 10 days after the expected method or methods of disposition receipt of the applicable Registrable Securities. Following receipt of a Demand Exercise Notice, the .
(iii) The Company shall fileshall, as promptly expeditiously as reasonably practicable, possible but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.15.1(b), a Registration Statement relating use its commercially reasonable efforts to (x) effect such registration under the offer and sale Securities Act of the Registrable Securities which the Company has been so requested to be included therein by the Holders thereof register, for distribution in accordance with the methods such intended method of distribution elected and (y) if requested by the Majority Participating Holders, obtain acceleration of the effective date of the registration statement relating to such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act registration as promptly as practicable after the filing thereoffollowing such request.
(b) No securities shall be included under any Notwithstanding anything to the contrary in Section 5.1(a), the Demand Registration Statement related rights granted in Section 5.1(a) to an underwritten offering without the written consent of Holders are subject to the Holders’ Representative, except Registrable Securities requested following limitations: (i) the Company shall not be required to be included therein cause a registration pursuant to Section 2.1(a). Subject 5.1(a)(i) to be declared effective within a period of 180 days after the effective date of any other registration statement of the Company filed pursuant to the preceding sentenceSecurities Act; (ii) if the Board of Directors, if in its good faith judgment, determines that any registration of Registrable Securities should not be made or continued because it would materially interfere with any material financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Company or any of its subsidiaries (a “Valid Business Reason”), the Registrable Securities registered pursuant Company may postpone filing a registration statement or withdraw a registration statement relating to a Demand Registration are to be sold Request until such Valid Business Reason no longer exists, but in a firm commitment underwritten offeringno event for more than 120 days in the aggregate in any twelve-month period (such period of postponement or withdrawal under this clause (ii), the “Postponement Period”); and the managing underwriter(s) Company shall give written notice of such underwritten offering advise its determination to postpone or withdraw a registration statement and of the Holders in writing that it is their good faith opinion fact that the total number Valid Business Reason for such postponement or dollar amount of Registrable Securities proposed withdrawal no longer exists, in each case, promptly after the occurrence thereof; (iii) the Company shall not be obligated to effect more than three Demand Registrations under Section 5.1(a) for all Holders and each Demand Registration Request shall have been made prior to January 1, 2011; and (iv) the Company shall not be sold in such offering, together with any Other Securities proposed required to be included by holders thereof which are entitled to include securities in such effect a Demand Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of unless the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such registration have an aggregate anticipated offering the number or dollar amount price of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
at least $125,000,000 (i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number then-current market price of Registrable Securities Beneficially Owned by each such Holder; and
the Common Stock). If the Company shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (ii) secondabove, among the Company shall not, during the period of postponement or withdrawal, register any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations equity security of the Company, and other than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in no event shall effect). Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company be required that the Company has determined to withdraw any registration statement pursuant to clause (ii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement and, if so directed by the Company, will deliver to the Company (at the Company’s expense) all copies, other than permanent file copies, then in such Holder’s possession of the prospectus covering such Registrable Securities that was in effect more than one Demand Registration in any six month period.
(d) In at the event time of a Demand Registration, receipt of such notice. If the Company shall use its reasonable best efforts have withdrawn or prematurely terminated a registration statement filed under Section 5.1(a)(i) pursuant to maintain the continuous effectiveness clause (ii) above or as a result of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or courtcourt for any reason not attributable to the Participating Holders, the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective. If the Company shall give any notice of withdrawal or postponement of a registration statement, the Company shall, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (D) more but in no event later than 10% 120 days after the date of the postponement or withdrawal), use its commercially reasonable best efforts to effect the registration under the Securities Act of the Registrable Securities requested covered by the Holders to be included in the withdrawn or postponed registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (statement in accordance with this Section 2.85.1 (unless the Initiating Holders shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of this Agreement).
(c) in connection with any In the event that a registration statement filed under Section 5.1(a)(i) is abandoned or withdrawn at the request of the Majority Participating Holders, the Initiating Holder’s request for registration pursuant to this Agreement regardless Section 5.1 shall be counted for purposes of whether or not such request counts toward the limitation set forth aboveDemand Registration Requests to which the Holders are entitled pursuant to this Section 5.1.
(hd) In addition The Company, subject to Sections 5.2 and 5.6, shall be entitled to include in any registration statement and offering made pursuant to Section 5.1(a)(i) any shares of Common Stock that are entitled to be included in such registration pursuant to the foregoingexercise of piggyback rights that are in existence on the date of this Agreement or that predate, or are not inconsistent with the Company will use its reasonable best efforts rights granted in, or otherwise in conflict with the terms of, this Agreement (“Piggyback Rights”); provided, however, that such inclusion shall be permitted only to remain qualified for registration on Form S-3 (including, without limitationthe extent that it is pursuant to and subject to the terms of the underwriting agreement or arrangements, if availableany, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under entered into by the Securities Act) Participating Holders or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Company’s contractual obligations under existing contracts.
(e) In connection with any Demand Registration, the Company shall use its reasonable best efforts have the right to keep designate the lead managing underwriter in connection with such Short-Form Registration effective with the SEC at all times registration and any Short-Form Registration shall be re-filed upon its expirationeach other managing underwriter for such registration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (provided that in each case, notwithstanding anything each such underwriter is reasonably satisfactory to the contrary Majority Participating Holders, and such underwriter shall agree with the Company not to knowingly sell securities in any underwritten offering that represent in excess of 1% of the then outstanding Common Stock to any person or “group” (as such term is used in Section 2.1(d)13d-5 of the Exchange Act, as currently in effect).
Appears in 1 contract
Sources: Investment Agreement (NTL Inc)
Demand Registrations. (ai) At Subject to Sections 2.1(b) and 2.3, at any time and from time to timetime after one hundred eighty (180) days following an IPO, each of the Holders’ Representative GSCP Parties shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file registration statements under and in accordance with the provisions of the Securities Act covering all or any part of its and its Affiliates' Registrable Securities by delivering a written request therefor to the Company specifying the number of Registrable Securities owned to be included in such registration and the intended method of distribution thereof. Any such request by any Holder pursuant to this Section 2.1(a)(i) is referred to herein as a "Demand Registration Request," and the registration so requested is referred to herein as a "Demand Registration" (with respect to any Demand Registration, the Holder(s) making such demand for registration being referred to as the "Initiating Holders"). Any Demand Registration Request may request that the Company register Registrable Securities on an appropriate form, including a shelf registration statement, and, if the Company is a well-known seasoned issuer, an automatic shelf registration statement. As promptly as practicable, but no later than five (5) Business Days after receipt of a Demand Registration Request, the Company shall give written notice (the "Demand Exercise Notice") of such Demand Registration Request to all Holders of record of Registrable Securities.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if y) the amount Registrable Securities of any other Holder of Registrable Securities requested which shall have made a written request to be registered is either the Company for inclusion in such registration (itogether with the Initiating Holders, the "Participating Holders") at least 20% of (which request shall specify the aggregate maximum number of Registrable Securities then held intended to be disposed of by all Holders or such Participating Holder) within twenty (ii20) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify Business Days after the expected method or methods of disposition receipt of the applicable Registrable Securities. Following Demand Exercise Notice (or ten (10) Business Days if, at the request of the Initiating Holders, the Company states in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form S-3 or F-3, as appropriate).
(iii) The Company shall, as expeditiously as possible (and in any event within forty-five (45) days after the receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicableRegistration Request), but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.12.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause (x) effect such Registration Statement to be declared effective registration under the Securities Act as promptly as practicable after (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the filing thereofSecurities Act if so requested and if the Company is then eligible to use such a registration) of the Registrable Securities which the Company has been so requested to register, for distribution in accordance with such intended method of distribution, including a distribution to, and resale by, the members or partners of a Holder (a "Partner Distribution") and (y) if requested by the Initiating Holders, obtain acceleration of the effective date of the registration statement relating to such registration.
(iv) Notwithstanding anything contained herein to the contrary, the Company shall, at the request of any Holder seeking to effect a Partner Distribution, include all disclosure and language necessary to effect such Partner Distribution.
(b) No securities shall be included under any Demand Registration Statement related Notwithstanding anything to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to contrary in Section 2.1(a). Subject , the Demand Registration rights granted in Section 2.1(a) are subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as followsfollowing limitations:
(i) firstThe Company shall not be required to effect in any 12 month period more than one (1) Demand Registrations on Form S-1 or Form F-1, as appropriate, and not more than one (1) Demand Registration on Form S-3 or F-3, as appropriate, in each case at the Registrable Securities for which inclusion in such demand offering was requested by request of the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and.
(ii) secondEach registration in respect of a Demand Registration Request made by any Holder must include, among any holders of Other Securities, pro rata, in the aggregate (based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such registration by all Holders participating in such registration), Registrable Securities having an aggregate market value of at least $40 million as of the date of the relevant Demand Registration Statement have actually been sold. For Request.
(iii) If the avoidance Board, in its good faith judgment, as evidenced by a written resolution of doubtthe Board of Directors or by a letter duly executed by the Chairman of the Board, determines that any registration of Registrable Securities should not be made or continued because filing a registration statement would materially impede, delay or interfere with any material pending or proposed financing, acquisition, corporate reorganization or other similar transaction involving the foregoing sentence is not intended Company for which the Board has authorized negotiations; materially adversely impair the consummation of any pending or proposed material offering or sale of any class of securities by the Company; or require disclosure of material non-public information that, if disclosed at such time, would be materially harmful to limit the obligation interests of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
and its stockholders (e) The Company shall be entitled to postpone (but not more than once in any six-month periodeach, a "Valid Business Reason"), for (x) the Company may postpone filing a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, registration statement relating to a Demand Registration Statement Request until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than six (6) months after the date the Board determines a Valid Business Reason exists (however, upon the expiration of three (3) months after the date the Board determines that a Valid Business Reason exists, the Board must in its good faith judgment, as evidenced by a written resolution of the Board of Directors or by a letter duly executed by the Chairman of the Board, determine that the same Valid Business Reason still exists) and (y) in case a registration statement has been filed relating to a Demand Registration Request, if the Valid Business Reason has not resulted from actions taken by the Company, the Company delivers may, to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, extent determined in the good faith judgment of the Board to be reasonably necessary to avoid interference with any of the transactions described above, cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than six (6) months after the date the Board determines a Valid Business Reason exists (however, upon the expiration of three (3) months after the date the Board determines that a Valid Business Reason exists, the Board must in its good faith judgment, as evidenced by a written resolution of the Board of Directors or by a letter duly executed by the Chairman of the CompanyBoard, determine that the same Valid Business Reason still exists) (such registrationperiod of postponement or withdrawal under this clause (iii), offering the "Postponement Period"). The Company shall give written notice of its determination to postpone or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide withdraw a registration statement and imminent material financing of the Company fact that the Valid Business Reason for such postponement or any imminent material transaction under consideration by withdrawal no longer exists, in each case, promptly after the occurrence thereof; provided, however, the Company shall not be permitted to postpone or would require withdraw a registration statement after the disclosure expiration of information that has not been, and is not otherwise required any Postponement Period until nine (9) months after the expiration of such Postponement Period. If the Company shall give any notice of postponement or withdrawal of any registration statement pursuant to be, disclosed to the publicclause (iii) above, the premature disclosure Company shall not, during the period of which would materially adversely affect the Company.
postponement or withdrawal, register any of its Ordinary Shares or other securities, other than pursuant to a registration statement on Form F-4, S-4 or S-8 (f) The Holders’ Representative shall have the right to notify or an equivalent registration form then in effect). E▇▇▇ ▇▇▇▇er of Registrable Securities agrees that, upon receipt of any notice from the Company that it the Company has determined that the to withdraw, terminate or postpone amending or supplementing any registration statement pursuant to clause (iii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event Statement. If the Company shall promptly abandon have withdrawn or withdraw such Registration Statement.
prematurely terminated a registration statement filed under Section 2.1(a)(i) (gwhether pursuant to clause (iii) No request for registration will count for the purposes above or as a result of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or any other Governmental Entity governmental agency or court), (D) more than 10% the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities requested covered by the Holders to be included in withdrawn or terminated registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the registration are not so included pursuant to Section 2.1(b), Company shall give any notice of withdrawal or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result postponement of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contraryregistration statement, the Company will pay all expenses shall, not later than five (5) Business Days after the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in accordance with Section 2.8no event later than three (3) in connection with any request for registration pursuant to this Agreement regardless months after the date of whether the postponement or not such request counts toward the limitation set forth above.
(h) In addition to the foregoingwithdrawal), the Company will use its reasonable best efforts to remain qualified effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the Initiating Holders shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of this Agreement), and such registration on Form S-3 shall not be withdrawn or postponed pursuant to clause (includingiii) of Section 2.1(b) above.
(c) In connection with any Demand Registration, without limitationthe Initiating Holders shall have the right to designate the lead managing underwriter (any lead managing underwriter for the purposes of this Agreement, the "Manager") in connection with any underwritten offering pursuant to such registration and each other managing underwriter for any such underwritten offering, in each case after consultation with the Company.
(d) The obligation to effect a Demand Registration as described in Section 2.1 above shall be deemed satisfied only when a registration statement covering the applicable Registrable Securities shall have become effective (unless, after effectiveness, the registration statement becomes subject to any stop order, injunction or other order of the SEC or other governmental agency).
(e) In the event that the Company files a shelf registration statement under Rule 415 of the Securities Act pursuant to a Demand Registration Request and such registration becomes effective (such registration statement, a "Shelf Registration Statement"), the Initiating Holders with respect to such Demand Registration Request shall have the right at any time or from time to time to elect to sell pursuant to an underwritten offering Registrable Securities available for sale pursuant to such registration statement ("Shelf Registrable Securities"), so long as the Shelf Registration Statement remains in effect and only if the method of distribution set forth in the shelf registration allows for sales pursuant to an underwritten offering. The Initiating Holders shall make such election by delivering to the Company a written request (a "Shelf Underwriting Request") for such underwritten offering to the Company specifying the number of Shelf Registrable Securities that the Initiating Holders desire to sell pursuant to such underwritten offering (the "Shelf Underwriting"). As promptly as practicable, but no later than five (5) Business Days after receipt of a Shelf Underwriting Request, the Company shall give written notice (the "Shelf Underwriting Notice") of such Shelf Underwriting Request to all Holders of record of Shelf Registrable Securities. The Company, subject to Sections 2.3 and 2.6, shall include in such Shelf Underwriting (x) the Registrable Securities of the Initiating Holders and (y) the Shelf Registrable Securities of any other Holder of Shelf Registrable Securities which shall have made a written request to the Company for inclusion in such Shelf Underwriting (which request shall specify the maximum number of Shelf Registrable Securities intended to be disposed of by such Holder) within ten (10) days after the receipt of the Shelf Underwriting Notice. The Company shall, as expeditiously as possible (and in any event within twenty (20) days after the receipt of a Shelf Underwriting Request), but subject to Section 2.1(b), use its reasonable best efforts to effect such Shelf Underwriting. The Company shall, at the request of any Initiating Holder, file any prospectus supplement or, if available, the applicable Shelf Registration Statement is an automatic shelf registration statement for a “well-known seasoned issuer” (as defined in Rule 405 under Section 2.4), any post-effective amendments and otherwise take any action necessary to include therein all disclosure and language deemed necessary or advisable by the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, Initiating Holders to effect such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding Shelf Underwriting. Notwithstanding anything to the contrary in Section 2.1(d2.1(e)) of, each Shelf Underwriting must include, in the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of aggregate (based on the Registrable Securities included in accordance with the methods of distribution elected such Shelf Underwriting by the Holdersall Holders participating in such Shelf Underwriting), including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to having an aggregate market value of at least $5 million as of the contrary in Section 2.1(d))date of the relevant Shelf Underwriting Request.
Appears in 1 contract
Sources: Registration Rights Agreement (Mindray Medical International LTD)
Demand Registrations. (a) At any time and from time to time, the Holders’ Representative shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant REQUESTS FOR REGISTRATION. Subject to the terms of this Agreementand conditions hereof, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) holders of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition 30% (treated as a single class) of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, Preferred Securities (as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”defined below) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective Warrant Shares (as defined below) may request registration under the Securities Act of 1933, as promptly amended (the "Securities Act"), of all or part of their Preferred Securities or Warrant Shares, as practicable after the filing thereof.
case may be, on Form S-1 or any similar long-form registration (b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a"Long-Form Registrations"). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any the holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation 30 (treated as a single class) of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing Preferred Securities or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No Warrant Shares may request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) Act of all or any comparable part of their Preferred Securities or successor form Warrant Shares, as the case may be, on Form S-2 or forms S-3 or any similar short-form registration (“"Short-Form Registration”) Registrations"), if available, which requests shall specify the approximate number of Preferred Securities or Warrant Shares requested to be registered and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, anticipated per share price range for such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form RegistrationIn the case of any such request, the Company shall use its reasonable best efforts will give written notice of such requested registration within ten days of receiving the request therefor to keep all holders of Preferred Securities, Warrant Shares, Other Investor Shares (as defined below) and Sava▇▇▇▇▇ ▇▇▇res (as defined below) and will include in such Short-Form Registration effective registration all Preferred Securities, Warrant Shares, Other Investor Shares and shares of Common Stock, $.001 par value, of the Company purchased by Sava▇▇▇▇▇ pursuant to that certain Stock Purchase Agreement dated December 9, 1994 among Bran▇▇▇▇ ▇▇▇ture, Sava▇▇▇▇▇ ▇▇▇ the Company ("Sava▇▇▇▇▇ ▇▇▇res") with respect to which the SEC at all times and Company has received written requests for inclusion therein within 15 days after the receipt of the Company's notice. All registrations requested pursuant to this paragraph l(a) are referred to herein as "Demand Registrations." Notwithstanding the foregoing provisions of this Section 1, the timing of the exercise by the holders of Preferred Securities or Warrant Shares of their right to request any Short-Form Demand Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything subject to the contrary approval of the holders of a majority of the Sava▇▇▇▇▇ ▇▇▇res, which approval shall not be unreasonably withheld or delayed. For purposes of calculating the 30% required to request any Demand Registration pursuant to this Section 1, a holder or group of holders must hold the equivalent of at least 30% of common stock, $.001 par value, of the Company, which have been issued or are issuable upon conversion of all Preferred Securities, upon exercise of "Conversion Rights" as defined in Section 2.1(d))the Company's Fourth Amended and Restated Certificate of Incorporation or upon exercise of the Warrants as set forth in the Warrant Agreement.
Appears in 1 contract
Demand Registrations. (a) At any time and from time to time, the Holders’ Representative shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms For purposes of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or clause (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant two or more registrations filed in response to one demand shall be counted as one registration statement. Each request for a Demand Registration are to be sold in a firm commitment underwritten offering, and by the managing underwriter(s) of such underwritten offering advise Initiating Holders shall specify the Holders in writing that it is their good faith opinion that the total number or dollar amount of the Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) firstsold, the Registrable Securities intended method of disposition thereof and the jurisdictions in which registration is desired. Upon a request for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts promptly take such steps as are necessary or appropriate to maintain prepare for the continuous effectiveness registration of the applicable Registration Statement for a period of at least one year Registrable Securities to be registered. Within fifteen (15) days after the effective date receipt of such request, the Company shall give written notice thereof or to all other Designated Holders holding Registrable Securities and include in such shorter period in which registration all Registrable Securities included in held by a Designated Holder holding Registrable Securities from whom the Company has received a written request for inclusion therein at least ten (10) days prior to the filing of the registration statement. Each such Registration Statement have actually been sold. For request will also specify the avoidance number of doubtRegistrable Securities to be registered, the foregoing sentence intended method of disposition thereof and the jurisdictions in which registration is not intended desired. The Company, subject to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(hSections 3(d) as required by Section 2.1(hand 3(e).
(e) The Company , shall be entitled to postpone (but not more than once include in any six-month period), for a reasonable period of time not in excess of 60 days (registration statement and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, offering made pursuant to a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer Registration, authorized but unissued shares of the Company certifying thatClass A Common Stock, in the good faith judgment shares of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration Class A Common Stock held by the Company as treasury shares or would require shares of Class A Common Stock held by stockholders other than the disclosure of information Designated Holders holding Registrable Securities; PROVIDED that has not been, and is not otherwise required to be, disclosed such inclusion shall be permitted only to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company extent that it has determined that is pursuant to and subject to the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes terms of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement arrangements, if any, entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to Initiating Holders exercising the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth aboveDemand Registration rights.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Demand Registrations. (a) At any time and from time to time, the Holders’ Representative shall have Summa Investor(s) (the right “Initiating Holder(s)”) may request in writing that the Company register under the Securities Act all or any portion of the Registrable Securities held by delivering one or more written notices the Initiating Holder(s); provided that no Registration Statement need be filed with the Commission (for the avoidance of doubt, this proviso excludes any Registration Statement confidentially submitted to the Commission) prior to the expiration of any “lock-up agreement” entered into with an underwriter in connection with the IPO (unless waived by such underwriter). Upon receipt of such written request, which shall specify the intended method of distribution thereof, the Company shall as soon as possible and in any case within three (each3) days deliver notice (any such written notice, a “Demand Notice”) to require the Company to” and any such registration, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”) thereof to all Holders (other than the Initiating Holder(s); provided), howeverif any, that who shall then have three (3) Business Days to notify the Company in writing of their desire to be included in such registration. If no request for inclusion from a Holder is received within the specified time, such Holder shall have no further right to participate in such Demand Registration. A Holder who is, or who is controlled by any person who is, an employee of the Company or its Subsidiaries may participate in a Demand Notice may Registration pursuant to this Section 2.1(a) within the Restrictive Period, only be made if and to the amount extent the aggregate of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or such Holder will include in such Demand Registration and (ii) reasonably expected to generate aggregate gross proceeds on sale (the Common Shares such Holder has sold, transferred, assigned, distributed or otherwise conveyed prior to deducting underwriting discounts such Demand Registration does not exceed the Maximum Amount of Shares (and commissions where the Initiating Holder(s) shall have the full and offering expenses) absolute discretion to determine the extent by which any cutbacks are required and which Holders will be affected), unless otherwise agreed by the Initiating Holder(s). Subject to the provisions of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand NoticeSection 2.5 below, the Company shall fileuse its reasonable best efforts to file a registration statement for such intended method of distribution, as promptly as reasonably practicable, but not later than, 60 than (x) sixty (60) days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) in the case of this Section 2.1), a registration with a Long-Form Registration Statement relating to and (y) thirty (30) days after such Demand Notice in the offer and sale case of the Registrable Securities requested to be included therein by the Holders thereof in accordance a registration with the methods of distribution elected by such Holders (a “Demand Short-Form Registration Statement”) , and in each case shall use its reasonable best efforts to cause such Registration Statement registration statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofthereof (subject to the proviso of the first sentence of this Section 2.1(a)).
(b) No securities Notwithstanding the foregoing, the Company shall not be included required to effect registration under this Section 2.1 before ninety (90) days after the effective date of any Demand other previously effective Registration Statement related to for an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered securities pursuant to a Demand Registration are Company-initiated registration (other than pursuant to be sold in a firm commitment underwritten offeringregistration statement on Form F-▇, and the managing underwriter(s▇-▇ or S-8) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion a Piggy-Back Underwritten Offering (as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicabledefined below), based on provided, however, that nothing in this clause shall derogate from the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holderCompany’s obligations under Section 2.4 hereof.
(c) The Holders collectively Company shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required obligated to effect more than one Demand Registration in any six month periodan unlimited number of registrations for the Summa Investor(s) under this Section 2.1.
(d) In the event of a Demand RegistrationA registration shall not be counted as “effected” if (i) after effectiveness, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating becomes subject to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC Commission or other Governmental Entity or courtgovernmental agency prior to the sale of all Registrable Securities to be sold thereunder, (Dii) more the method of disposition is a firm commitment underwritten public offering and, as a result of an exercise of the underwriters’ cutback provisions in Section 2.3(b), less than 10% seventy-five (75%) of the Registrable Securities requested by the Holders to be included therein have been sold pursuant thereto; provided, however, that if such registration is the second registration on a Long-Form Registration Statement of the applicable Initiating Holder(s) as described in the registration are not so included pursuant to Section 2.1(b2.1(c) hereof, then such percentage shall be ninety (90%), or (Eiii) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, if the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether shall have withdrawn or not such request counts toward the limitation prematurely terminated a Registration Statement as set forth abovein Section 2.5.
(he) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the The Registrable Securities in accordance with the methods of distribution elected covered by the Holders, including any Registration Statement demanded under this Section 2.1 shall be distributed by means of an a firm commitment underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts offering unless otherwise agreed to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested writing by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)Summa Investor(s).
Appears in 1 contract
Sources: Registration Rights Agreement (Olink Holding AB (Publ))
Demand Registrations. (a) At any time In the case of a registration pursuant to Section 10.1 hereof, whenever the Majority Participating Shareholders shall request that such registration shall be effected pursuant to an underwritten offering, such registration shall be so effected, and from time only securities which are to timebe distributed by the underwriters designated by such Majority Participating Shareholders may be included in such registration. If requested by such underwriters, the Holders’ Representative Company and each participating seller will enter into an underwriting agreement with such underwriters for such offering containing such representations and warranties by the Company and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, indemnity and contribution. In each such registration pursuant to Section 10.1, each Shareholder agrees that without the consent of the managing underwriter, for a period from 7 days prior to the effective date of the registration statement until 180 days after such effective date, such Shareholder will not directly or indirectly sell, offer to sell, grant any option for the sale of, or otherwise dispose of any common equity or securities convertible into common equity except (i) for Registrable Securities sold in such registered offering and (ii) transfers to Affiliates and partners and stockholders of such Shareholder, each of whom shall have the right by delivering one or more written notices furnished to the Company (each, a “Demand Notice”) to require and the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice managing underwriter their written consent to be so registered (a “Demand Registration”)bound by this Agreement including this Section 10.4.1; provided, however, that the prohibitions hereunder shall not apply to shares of Common Stock or other securities convertible into Common Stock (other than shares that are restricted securities within the meaning of the Securities Act) purchased by such Shareholder in the open market following the consummation of a Public Offering. If the managing underwriter advises the Demand Notice may only Registrants that the number of shares to be made included in a registration pursuant to Section 10.1 hereof should be limited due to market conditions or otherwise, (i) all shares that are not Registrable Securities (other than those sought to be registered by the Company) shall be excluded first, (ii) thereafter, if additional shares must be excluded from such registration, shares sought to be registered by the amount Company shall be excluded from such registration and; (iii) thereafter, if additional shares must be excluded from such registration, all holders of Registrable Securities held by Shareholders shall share pro rata in the number of shares of Registrable Securities to be excluded from such registration pursuant to this clause (iii), such sharing to be based on the respective numbers of shares requested to be registered is either (i) at least 20% of by such holders. In the aggregate number of Registrable Securities then held by event that the Demand Registrants are unable to include all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities such Demand Registrants originally requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein registration statement pursuant to Section 2.1(a). Subject to the preceding sentence10.1 hereof, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for demand registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are 10.1 shall not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth abovebe forfeited.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Demand Registrations. (a) 2.2.1 At any time and from time after the date the Company becomes eligible to timefile a registration statement on Form S-3 until the Termination Date, the Holders’ Representative shall have the right Principal Holder may, by delivering one or more written notices notice to the Company (eachCompany, a “Demand Notice”) to require request that the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), file a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders on Form S-3 (a “Demand Registration Statement”) either (i) for an offering of Registrable Shares to be made on a continuous basis pursuant to Rule 415 or (ii) for the purpose of effecting a Block Trade or Public Offering of Registrable Shares, subject to Section 4.7. In the event that the Company is not eligible to file a Registration Statement on Form S-3 by May 1, 2007 or if at any time thereafter for a period of six (6) consecutive months (i) the Company is not eligible to file a registration statement on Form S-3 and (ii) there is no effective Registration Statement on Form S-3 on file with the Commission with respect to the Registrable Shares, then, for so long as the conditions recited in clauses (i) and (ii) continue, the Principal Holder shall be entitled to utilize one of its rights to demand registration as provided in Section 2.3.1 for the purpose of effecting a Public Offering of Registrable Shares on whatever form prescribed by the Commission that the Company is then eligible to use, subject to the terms and conditions set forth herein. Such a Public Offering, if effected, shall be counted against the limitation on Demand Registration Statements under Section 2.3.1 and against the limitation on Public Offerings under Section 2.4.3.
2.2.2 Promptly after receipt of notice requesting registration pursuant to Section 2.2.1, the Company will give written notice of such requested registration to all other Holders of Registrable Shares, if any. Subject to the terms and conditions set forth herein, including Section 5.3, the Company will use its commercially reasonable best efforts to cause such Registration Statement to be declared effective effect the registration under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant Shares that the Company has been requested to a Demand Registration are register by the Holders requesting such registration and all other Registrable Shares that the Company has been requested to be sold in a firm commitment underwritten offeringregister by other Holders, and so long as written notice is delivered to the managing underwriter(sCompany within five (5) Business Days after the giving of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested notice by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of . If a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for written notice from a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence Holder is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration received by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
more than five (f5) The Holders’ Representative shall have the right to notify Business Days after the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawngives notice in accordance with this Section 2.2.2, in which event the Company shall promptly abandon or withdraw such Registration Statement.
but not later than five (g5) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration Business Days prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the CompanyStatement, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, then the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant endeavor to this Agreement regardless of whether or not such request counts toward register the limitation set forth above.
(h) In addition to the foregoing, Registrable Shares that the Company will use its reasonable best efforts has been requested to remain qualified for registration on Form S-3 (includingregister in such notice, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” so long as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but would not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous incur any additional material delays or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))expense.
Appears in 1 contract
Sources: Registration Rights Agreement (Atlas Air Worldwide Holdings Inc)
Demand Registrations. (a) At any time and from time to time, the Holders’ Representative The Holders shall have the right right, commencing on the date on which PCCW and its direct and indirect subsidiaries shall be permitted to sell Common Stock without the restrictions imposed by delivering one or more Section 6.7 of the Share Exchange Agreement by written notices notice (the "Demand Notice") given to the Company (eachCompany, a “Demand Notice”) to require request the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale part of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected designated by such Holders (a “"Demand Registration"). Upon receipt of any such Demand Notice from any Holder, the Company will promptly notify all other Holders of the receipt of such Demand Notice and allow them the opportunity to include Registrable Securities held by them in the proposed registration by submitting their own Demand Notice. Notwithstanding anything herein to the contrary, the Company shall not be required to honor a request for a Demand Registration Statement”if the Company has not received Demand Notices from the Required Investors. The Company shall not be required to register any Registrable Securities under this Section 2 unless the approximate aggregate offering price of the Registrable Securities included in such Demand Notices shall be at least US$25 million.
(b) Subject to paragraph (a) above, as soon as practicable, but in any event within 20 days of the date on which the Company first receives a Demand Notice pursuant to Section 2(a) hereof, the Company shall file with the Commission a Registration Statement on the appropriate form for the registration and sale of the total number of Registrable Securities specified in such Demand Notice in accordance with the intended method or methods of distribution specified by the Holders in such Demand Notice. Subject to paragraph (h) below, the Company may include in such registration other securities for sale for its own account or for the account of any other holders of Common Stock ("Other Security Holders"). The Company shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as reasonably practicable. Notwithstanding the foregoing, the Company shall not be obligated to file a Registration Statement pursuant to this Section 2(b):
(1) if Form S-3 (or any successor form with substantially the same disclosure requirements) is not available for such offering by the Holders; or
(2) if the Company has, within the six month period preceding the date of such request, already effected a registration under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ RepresentativeAct, except other than a registration from which Registrable Securities requested of Holders have been excluded (with respect to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if all or any portion of the Registrable Securities registered requested by included in such registration) pursuant to the provisions of Section 3 hereof.
(c) Subject to Section 2(d), upon the occurrence of any event that would cause the Registration Statement (A) to contain a Demand Registration are material misstatement or omission or (B) to be sold in a firm commitment underwritten offering, not effective and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount usable for resale of Registrable Securities proposed during the period that such Registration Statement is required to be sold effective and usable, the Company shall file an amendment to the Registration Statement as soon as reasonably practicable, in the case of clause (A), correcting any such offeringmisstatement or omission and, together with any Other Securities proposed in the case of either clause (A) or (B), use reasonable best efforts to cause such amendment to be declared effective and such Registration Statement to become usable as soon as reasonably practicable thereafter.
(d) The Company agrees to use reasonable best efforts to keep any Registration Statement filed pursuant to this Section 2 continuously effective and usable for the sale of Registrable Securities until the earlier of (i) 120 days from the date on which the Commission declares such Registration Statement effective, or (ii) the date on which all the Registrable Securities covered by such Registration Statement have been sold pursuant to such Registration Statement. Notwithstanding the foregoing, the Company shall have the right to delay the filing of any Registration Statement otherwise required to be prepared and filed by the Company pursuant to this Section 2, or to suspend the use of any Registration Statement, for a period not in excess of 90 days (a "Delay Period") if the Company shall furnish to the Holders whose Registrable Securities are included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the President or Chief Executive Officer and Chief Financial Officer of the Company certifying stating that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use it would reasonably be expected materially detrimental to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or and its stockholders for such Holders to continue to make sales thereunder, provided, that the 120 day period set forth in clause (i) above shall be ex- tended by an amount of time equal to any imminent material transaction under consideration by Delay Period which interrupts such 120 period. The Company may not utilize this right more than once in any twelve (12) month period.
(e) The Company shall not enter into any agreement granting any Other Security Holder piggyback rights to include such Other Security Holder's securities in any registration in which the Company or would require Holders have the disclosure of information that has not been, and right to include Registrable Securities on a priority basis more favorable to such Other Security Holder than is not otherwise required to be, disclosed provided to the public, the premature disclosure of which would materially adversely affect the CompanyHolders pursuant to Section 3(b).
(f) The Holders’ Representative shall have Holders of a majority in number of the right Registrable Securities to notify the Company that it has determined that the Registration Statement relating to be included in a Demand Registration be abandoned or withdrawnpursuant to this Section 2 may, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration at any time prior to the effectiveness effective date of the Registration Statement relating in respect thereof, revoke such request by providing a written notice to the Company to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth aboveeffect.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Demand Registrations. (a) At any time and from time to timeafter the Closing, the Holders’ Representative shall have holders of at least 20% of the right by delivering one Warrant Shares outstanding at the time (equitably adjusted to reflect stock splits, stock dividends, combinations or more written notices similar events and adjustments pursuant to Paragraph 5 of the Warrants) may request registration under the Securities Act of 1933, as amended (the "Securities Act"), of all or part of their Warrant Shares on Form S-1 or any other form available for the registration of the Warrant Shares ("Demand Registrations"). Within 10 days after receipt of any such request, the Company (eachshall give written notice of such request to all other holders of the Warrant Shares and shall, a “Demand Notice”) subject to require the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of Section 2(c) hereof, include in such registration all Warrant Shares with respect to which the Securities Act Company has received written requests for inclusion therein within 30 days after the receipt of the Company's notice.
(b) Subject to the provisions of Section 2(a), the holders of the Warrant Shares shall be entitled to request three Demand Registrations, and the Company shall pay all Registration Expenses (as defined in Section 6 hereof) in connection therewith. A registration shall not count as one of the three permitted Demand Registrations (i) until the registration has become effective, or (ii) if the holders initiating the request for such registration are not able to register and sell at least 66-2/3% of the shares of Common Stock requested by such holders to be included in such registration. In any event, the Company shall pay all Registration Expenses in connection with any registration initiated as a Demand Registration, whether or not consummated.
(c) In the event that the managing underwriters of the requested Demand Registration advise the Company in writing that in their judgment in order to effect an orderly public distribution the number of Registrable Securities owned Warrant Shares proposed to be included in any such Demand Registration must be limited, the Company shall include in such registration only the number of Warrant Shares which, in the opinion of such underwriters, can be sold in an orderly public distribution, such limitation to be imposed pro rata among the holders of the Warrant Shares who are participating in such registration on the basis of the amount of such securities initially proposed to be registered by Holders such holder.
(d) The Company shall not be obligated to effect any Demand Registration within six months after the effective date of a previous Demand Registration or a previous registration under which each holder of Warrant Shares was given piggyback rights (and was able to include a minimum of 66-2/3% of the shares of Warrant Shares requested by it to be included in such registration) pursuant to Section 3 hereof. The Company may postpone for up to six months the filing or the effectiveness of a registration statement for a Demand Registration if the Company reasonably believes that such Demand Notice Registration might reasonably be expected to be so registered have an adverse effect on any proposal or plan by the Company to engage in any acquisition of assets (a “Demand Registration”)other than in the ordinary course of business) or any merger, consolidation, tender offer or similar transaction; provided, however, that a Demand Notice may only be made if in such event, the amount of Registrable Securities requested to be registered is either (i) at least 20% holders of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify Warrant Shares initiating the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of request for such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to withdraw such request no more than three and, if such request is withdrawn, such Demand Registrations Registration shall not count as one of the Company, and in no event shall permitted Demand Registrations. If the Company be required elects to effect more than one Demand Registration in any six month period.
(d) In postpone the event filing or effectiveness of a Demand Registration, it shall promptly notify each member of the Lender Group. In any event, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable pay all Registration Statement for Expenses in connection with any registration initiated as a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h)Demand Registration.
(e) The Company shall be entitled to postpone (but not more than once holders of a majority of the Warrant Shares participating in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify select the Company that it has determined that investment banker(s) and manager(s) to administer the Registration Statement relating to a Demand Registration be abandoned or withdrawnoffering, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating subject to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration's approval, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall not be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))unreasonably withheld.
Appears in 1 contract
Sources: Registration Agreement (SPX Corp)
Demand Registrations. (a) At any time (i) in the case of the holders of CRP Registrable Securities, that the Company is or becomes subject to Section 13 or Section 15(d) of the Exchange Act, and (ii) in the case of the holders of ABRY Registrable Securities, on or after the earlier of (x) two years from time the date hereof and (y) the date upon which the price for the Common Stock has reached $[ ](1), per share, each of the Majority CRP Holders and the Majority ABRY Holders, as applicable, may cause the Company, by delivery of written notice to timethe Company, to register under the Holders’ Representative Securities Act all or any portion of the CRP Registrable Securities or ABRY Registrable Securities, as the case may be, in the manner specified in such notice and upon receipt of such notice the Company shall have promptly deliver notice of such request to all Persons holding Registrable Securities, including each Person party to this Agreement who has the right by delivering one or more written notices to acquire Registrable Securities, who shall then have thirty (30) days to notify the Company in writing of their desire to be included in such registration. The Company will use its best efforts to expeditiously effect the registration of all Registrable Securities requested to be included in such registration under the Securities Act, but only to the Company (each, a “Demand Notice”) to require extent provided for in the Company to, pursuant to the terms following provisions of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that the Company shall not be required to effect registration pursuant to a Demand Notice request under this Section 2.1(a): (i) more than (A) two (2) times for the holders of the CRP Registrable Securities as a group and (B) more than two (2) times for the holders of the ABRY Registrable Securities as a group; (ii) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may only be made required under the Securities Act; or (iii) if the amount holders of Registrable Securities requested initially requesting such registration propose to be registered is either (i) at least 20% dispose of the aggregate number shares of Registrable Securities then held by all Holders that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.8 below; and provided further, that a registration pursuant to a request under this Section 2.1(a) shall be not be counted toward the maximum number of two (2) registrations for the holders of CRP Registrable Securities or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition holders of the applicable ABRY Registrable Securities. Following receipt of a Demand Notice, in the event the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect fails to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale effectively register all of the Registrable Securities requested as to which registration has been requested. Notwithstanding anything to the contrary contained herein, no request may be included therein made under this Section 2.1(a) within 180 days after the effective date of a registration statement filed by the Holders thereof Company covering a firm commitment underwritten public offering in accordance with which the methods of distribution elected by such Holders (a “Demand Registration Statement”) Investors shall have been entitled to join pursuant to Section 2.2 or Section 2.8 and in which there shall use its reasonable best efforts have been effectively registered all Registrable Securities as to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofwhich registration shall have been requested.
(b) No securities shall Whenever a requested registration pursuant to Section 2.1(a) is for an underwritten offering, only Registrable Securities which are to be included under any Demand Registration Statement related in the underwriting may be included in the registration, and, if the managing underwriter of such offering determines in good faith that the number of Registrable Securities so included which are to an underwritten offering without be sold by the written consent holders of the Holders’ Representative, except Registrable Securities should be limited due to market conditions, the holders of Registrable Securities to be included in such underwriting and registration shall share pro rata in the number of such Registrable Securities being underwritten and registered for their account, such sharing to be based on the number of all Registrable Securities held by such holders, respectively; provided, that in no event shall the holders of Registrable Securities entitled to participate in such registration pursuant to Section 2.1(a) have the number of Registrable Securities which are to be included in such underwriting and registration reduced or limited
(1) Will be an amount equal to 2.67x the Initial Conversion Price. (including pursuant to Section 2.2 hereof) until the holders who have a contractual, incidental “piggy back” right to include securities in the registration statement and who have requested inclusion pursuant to such right have the number of securities requested to be included therein in such registration statement reduced to zero (0). Whenever a requested registration pursuant to Section 2.1(a). Subject to 2.1 is for an underwritten public offering, the preceding sentence, if any holders of a majority of the Registrable Securities registered pursuant initiating registration, subject to a Demand Registration are to the approval of the Company (which approval will not be sold in a firm commitment underwritten offeringunreasonably withheld, and conditioned or delayed), may designate the managing underwriter(s) of such underwritten offering advise offering. The Company may not cause any other registration of securities for sale for its own account (other than in connection with the Holders in writing that it is their good faith opinion that the total number registration of equity securities issued or dollar amount of Registrable Securities proposed issuable pursuant to be sold in such offeringan employee stock option, together with any Other Securities proposed stock purchase, stock bonus or similar plan or pursuant to be included by holders thereof which are entitled to include securities in such Registration Statementa merger, exceeds the total number exchange offer or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution transaction of the Registrable type specified in Rule 145(a) under the Securities Act) to be so included together with all such Other Securities, then there shall be included in such offering become effective less than 90 days after the number or dollar amount effective date of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holderregistration required pursuant to this Section 2.1.
(c) The Holders collectively shall If at the time of any request to register Registrable Securities pursuant to Section 2.1(a) the Company is preparing or within thirty (30) days thereafter intends to commence to prepare a registration statement for a public offering (other than in connection with the registration of equity securities issued or issuable pursuant to an employee stock option, stock purchase, stock bonus or similar plan or pursuant to a merger, exchange offer or transaction of the type specified in Rule 145(a) under the Securities Act) which in fact is filed and becomes effective within ninety (90) days after the request and the Company has complied with the provisions of Section 2.2 hereof, or is engaged in any activity which, in the good faith determination of the Company’s board of directors, would be entitled adversely affected by the requested registration to request no more than three Demand Registrations the material detriment of the Company, and in no event shall then the Company may at its option direct that such request be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement delayed for a period not in excess of at least one year after four months from the effective date thereof of such offering or the date of commencement of such shorter period in which all Registrable Securities included in other activity, as the case may be, such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended right to limit the obligation of delay a request to be exercised by the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month two year period), for a reasonable period of time not . Nothing in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in this Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness shall preclude a holder of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable from enjoying registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to rights which it might otherwise possess under Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders)2.2 hereof. Notwithstanding anything to the contrary, If the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for has exercised its right to delay a registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) Section and the Company shall file, as promptly as reasonably practicable after holders of Registrable Securities withdraw the execution and delivery of this Agreement, but not later than 30 daysdemand for such registration, such Short-Form Registration, which withdrawn demand shall constitute not be counted as a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in demand under this Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))2.1.
Appears in 1 contract
Demand Registrations. (a) At Subject to the terms and conditions hereof, solely during any time and from time period when the Company is not eligible under Applicable Law to timeregister Registrable Securities on Form S-3 pursuant to Section 1.3, the Holders’ Representative any Demand Stockholders (“Requesting Stockholders”) shall have the right by delivering one or more be entitled to make a number of written notices to requests of the Company (each, a “Demand NoticeDemand”) to require set forth in Section 1.1(c) hereof for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Stockholders that equals or is greater than the Registrable Amount (a “Demand Registration”). Thereupon the Company towill, pursuant subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register under and by the Requesting Stockholders for disposition in accordance with the provisions intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which the Securities Act Company has been requested to register pursuant to Section 1.1(b), but subject to Section 1.1(g); and
(iii) all shares of Company Common Stock which the number Company may elect to register in connection with any offering of Registrable Securities owned by Holders pursuant to this Section 1.1, but subject to Section 1.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and requested by such Demand Notice the additional shares of Company Common Stock, if any, to be so registered registered.
(a “b) A Demand Registration”); provided, however, that a Demand Notice may only be made if shall specify (i) the amount aggregate number of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or in such Demand Registration, (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected intended method or methods of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the applicable Registrable SecuritiesRequesting Stockholder(s). Following Within three (3) Business Days after receipt of a Demand NoticeDemand, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days give written notice of such Demand to all other Holders of Registrable Securities. The Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by which the Company of such Demand Notice has received a written request for inclusion therein from the Holder thereof within ten (10) days after the Company’s notice required by this paragraph has been given, subject to paragraph (e) Section 1.1(g). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2.11.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively Requesting Stockholders shall be entitled have the right to request only a total of up to three (3) Demand Registrations; provided that no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration may be made in any six month (6)-month period.
(d) In the event of . A Demand Registration shall not be deemed to have been effected and shall not count as a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement (i) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least one year after the effective date thereof hundred eighty (180) days or such shorter period in which all Registrable Securities included in such Demand Registration Statement have actually been sold. For sold thereunder (provided that such period shall be extended for a period of time equal to the period the Holder of Registrable Securities refrains from selling any securities included in such registration statement at the request of the Company or the lead managing underwriter(s) pursuant to the provisions of this Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to one hundred eighty (180) days after effectiveness, to any stop order, injunction or other order or requirement of the Commission or other Governmental Authority, other than by reason of any act or omission by the applicable Selling Stockholders.
(d) Demand Registrations shall be on such appropriate registration form of the Commission as shall be selected by the Company and reasonably acceptable to the Requesting Stockholders.
(e) The Company shall not be obligated to (i) subject to Section 1.1(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration for a period longer than one hundred eighty (180) days or (ii) effect any Demand Registration (A) within six months of a “firm commitment” Underwritten Offering in which all Demand Stockholders were offered “piggyback” rights pursuant to Section 1.2 (subject to Section 1.2(b)) and at least 90% of the number of Registrable Securities requested by such Requesting Stockholders to be included in such Demand Registration were included and sold or (B) within six months of the completion of any other Demand Registration (including, for the avoidance of doubt, the foregoing sentence is not intended any Underwritten Offering pursuant to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form any Shelf Registration contemplated by Section 2.1(h) as required by Section 2.1(hStatement).
(ef) The Company shall be entitled to postpone (but not more than once in upon written notice to the Requesting Stockholders and any six-month periodother Holders whose Registrable Securities are covered by such Demand pursuant to Section 1.1(b), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), ) the filing or initial the effectiveness of, or suspend the use of, of a registration statement for any Demand Registration Statement if in the event of a Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period, the Company delivers shall deliver to the Holders’ Representative Requesting Stockholders requesting registration and any other Holders whose Registrable Securities are covered by such Demand pursuant to Section 1.1(b)) a certificate signed by both either the Chief Executive Officer and Chief Financial Officer chief executive officer or the chief financial officer of the Company certifying that, in the good faith judgment of the Board Company, the conditions described in the definition of Directors Blackout Period are met.
(g) If, in connection with a Demand Registration or Shelf Offering that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its (their) opinion, the inclusion of all of the Company, securities sought to be registered in connection with such registration, offering or use Demand Registration would reasonably be expected to materially adversely affect the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first pro rata among the Holders (including the Sponsors, as applicable) that have requested to participate in such Demand registration based on the relative number of Registrable Securities then held by each such Holder (provided that any Registrable Securities thereby allocated to a Holder that exceed such Holder’s request or materially interfere with any bona fide the maximum number of Registrable Securities that may be sold by such Holder pursuant to Section 3.6(a) shall be reallocated among the remaining requesting Holders in like manner), in each case subject to Section 3.6(a); (ii) second, securities the Company proposes to sell; and imminent material financing (iii) third, all other securities of the Company duly requested to be included in such registration statement by other persons, pro rata on the basis of the amount of such other securities requested to be included or any imminent material transaction under consideration such other allocation method determined by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(fh) The Holders’ Representative shall have the right to notify the Company Any time that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawnShelf Offering involves an Underwritten Offering, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes Holders of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% a majority of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested then held by the Holders who have requested to participant in such Demand Offering shall select the investment banker(s) and manager(s) that will serve as managing underwriters (including which such managing underwriters will serve as lead or co-lead) and underwriters with respect to the offering of such Registrable Securities; provided that such investment banker(s) and manager(s) shall be subject to the prior written consent of the Company, not to be included in the registration are not so included pursuant to Section 2.1(b)unreasonably withheld, conditioned or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth abovedelayed.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Sources: Stockholders and Registration Rights Agreement (Intercontinental Exchange, Inc.)
Demand Registrations. (ai) At Subject to Section 2.1(c), at any time and or from time to timetime after the six-month anniversary of the first date on which the Company shall have effected the registration under the Securities Act of any shares of Common Stock, the Holders’ Representative one or more Holders shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act covering Registrable Securities with an aggregate value of $10,000,000 or greater (based on the market price of the Common Stock as of the date of the Demand Registration Request (as defined below)), by delivering a written request therefor to the Company specifying the number of Registrable Securities owned to be included in such registration by such Holders and the intended method of distribution thereof. All such requests by any Holder pursuant to this Section 2.1(a)(i) are referred to as “Demand Registration Requests,” the registrations so requested by are referred to as “Demand Registrations” and the Holders making such demand for registration are referred to as the “Initiating Holders.” As promptly as practicable, but no later than ten days after receipt of a Demand Notice to be so registered Registration Request, the Company shall give written notice (a “Demand Exercise Notice”) of such Demand Registration Request to all Holders of record of Registrable Securities.
(ii) The Company, subject to Sections 2.3 and 2.7, shall include in a Demand Registration (A) the Registrable Securities of the Initiating Holders and (B) the Registrable Securities of any other Holder that shall have made a written request to the Company within the time limits specified below for inclusion in such registration. Any such request from the other Holders must be delivered to the Company within 15 days after the receipt of the Demand Exercise Notice and must specify the maximum number of Registrable Securities intended to be disposed of by such other Holder.
(iii) The Company, as expeditiously as possible but subject to Section 2.1(c), shall use its commercially reasonable efforts to effect such Demand Registration.
(b) Registrations under this Section 2.1 shall be on such appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which form shall be selected by the Company and shall be reasonably acceptable to the Majority Participating Holders.
(c) The Demand Registration rights granted in Section 2.1(a) to the Holders are subject to the following limitations:
(i) the Company shall not be required to cause a registration pursuant to Section 2.1(a) to be filed within 90 days or to be declared effective within a period of 180 days after the effective date of any other registration statement of the Company filed pursuant to the Securities Act;
(ii) if in any registration of Registrable Securities would require disclosure of information not otherwise then required by law to be publicly disclosed and, in the good faith judgment of the board of directors of the Company, such disclosure is reasonably likely to adversely affect any material financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Company or otherwise have a material adverse effect on the Company (a “Valid Business Reason”), the Company may postpone or withdraw a filing of a registration statement relating to a Demand Registration Request until such Valid Business Reason no longer exists, but in no event shall the Company avail itself of such right for more than 180 days, in the aggregate, in any period of 365 consecutive days (such period of postponement or withdrawal under this clause (ii), the “Postponement Period”); and the Company shall give notice to the Participating Holder(s) of its determination to postpone or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof; and
(iii) the Company shall not be obligated to effect more than three Demand Registrations under Section 2.1(a) for the benefit of transferees of the Original Holder granted demand registration rights by the Original Holder pursuant to this Agreement. If the Company shall give any notice of postponement or withdrawal of any registration statement pursuant to clause (ii) above, the Company shall not register any equity security of the Company during the period of postponement or withdrawal. Each Holder agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw any registration statement pursuant to clause (ii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Company shall have withdrawn or prematurely terminated a registration statement filed under Section 2.1(a)(i), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement pursuant to clause (ii) above, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event more than 180 days after the date of the postponement or withdrawal), the Company shall use its commercially reasonable efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1.
(d) The Company, subject to Sections 2.3 and 2.7, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), (i) authorized but unissued shares of Common Stock or shares of Common Stock held by the Company as treasury shares and/or (ii) any other shares of Common Stock that are requested to be included in such registration pursuant to the exercise of piggyback rights granted by the Company that are not inconsistent with the rights granted in, or otherwise conflict with the terms of, this Agreement (“Additional Piggyback Rights”); provided, however, that such inclusion shall be permitted only to the extent that it is pursuant to and subject to the terms of the underwriting agreement or arrangements, if any, entered into by the Participating Holders.
(e) A Holder may withdraw its Registrable Securities from a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) Registration at least 20% of the aggregate number of Registrable Securities then held by any time. If all such Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Noticedo so, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect cease all efforts to any underwritten offering, secure registration and such registration nonetheless shall be deemed a Demand Registration for purposes of this Section 2.1 unless (i) the withdrawal is made following withdrawal or 30 days with respect to any other offering, after receipt postponement of such registration by the Company of such Demand Notice (subject pursuant to paragraph (e) of this a Valid Business Reason as contemplated by Section 2.12.1(c)(ii), a Registration Statement relating to (ii) the offer and sale withdrawal is based on the reasonable determination of the Registrable Securities requested to be included therein Initiating Holders that there has been, since the date of the Demand Registration Request, a material adverse change in the business or prospects of the Company or (iii) the Initiating Holders have paid or reimbursed the Company for all of the reasonable out-of-pocket fees and expenses incurred by the Holders thereof Company in accordance connection with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofwithdrawn registration.
(bf) No securities shall be included under any A Demand Registration Statement related shall not be deemed to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, have been effected and the managing underwriter(s) of shall not count as such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, unless a registration statement with respect thereto has become effective and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement has remained effective for a period of at least one year after the effective date thereof 180 days or such shorter period in during which all Registrable Securities included in covered by such Registration Statement registration statement have actually been sold. For the avoidance of doubtsold or withdrawn, the foregoing sentence is not intended or, if such registration statement relates to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period)an underwritten offering, for a reasonable such longer period of time not in excess of 60 days (and not for periods exceedingas, in the aggregate, 90 days during any twelve-month periodopinion of counsel for the underwriter(s), the filing or initial effectiveness of, or suspend the use of, is required by law for delivery of a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, prospectus in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere connection with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in by an underwriter or dealer, (ii) if, after the applicable registration relating statement with respect thereto has become effective, it becomes subject to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity governmental agency or courtcourt for any reason, (Diii) more than 10% of the Registrable Securities requested if it is withdrawn by the Holders to be included in the registration are not so included Company pursuant to a Valid Business Reason as contemplated by Section 2.1(b), 2.1(c) or (Eiv) if the conditions to closing specified in any underwriting the purchase agreement or purchase underwriting agreement entered into in connection with the registration relating to such request Demand Registration are not satisfied (satisfied, other than as a result solely by reason of a material default some act or breach thereunder by omission of the applicable Participating Holders). Notwithstanding anything to the contrary, the Company will pay all expenses .
(in accordance with Section 2.8g) in In connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Demand Registration, the Company shall use its reasonable best efforts to keep may designate the lead managing underwriter in connection with such Short-Form Registration effective with the SEC at all times registration and any Short-Form Registration shall be re-filed upon its expirationeach other managing underwriter for such registration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise requiredprovided, until the Holders no longer hold Registrable Securities (that, in each case, notwithstanding anything each such underwriter is reasonably satisfactory to the contrary in Section 2.1(d))Majority Participating Holders.
Appears in 1 contract
Demand Registrations. (a) At Commencing at any time and from time to timeafter June 1, 2002, the Holders’ Representative shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number holders of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) Shares constituting at least 2040% of the aggregate number of Registrable Securities Shares then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, outstanding may request the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and register for sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act all or any portion of the Registrable Shares held by such requesting holder or holders for sale in the manner specified in such notice. If, in connection with a registration requested pursuant to this Section 3 the holder or holders of Registrable Shares are unable to include in such registration the full number of Registrable Shares for which registration has been requested, either as promptly as practicable after a result of any limitation on the filing thereofregistration of shares placed by the managing underwriter or for any other reason, then such registration shall be d eemed to have been a registration under Section 2 of this Agreement.
(b) No securities Following receipt of any notice under this Section 3, the Company shall immediately notify all holders of Registrable Shares from whom notice has not been received and such holders shall then be entitled within thirty (30) days after receipt of such notice from the Company to request the Company to include in the requested registration all or any portion of their Registrable Shares. The Company shall use its best efforts to register under the Securities Act, for public sale in accordance with the method of disposition specified in the notice from requesting holders described in paragraph (a) above, the number of Registrable Shares specified in such notice (and in all notices received by the Company from other holders within thirty (30) days after the receipt of such notice by such holders).
(c) If the holders requesting such registration intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 3 and the Company shall include such information in the written notice referred to in paragraph (b) above.
(d) A registration statement filed pursuant to this Section 3 may, subject to the following provisions, include (i) shares of Common Stock for sale by the Company for the Company's own account, (ii) shares of Common Stock held by officers or directors of the Company and (iii) shares of Common Stock held by Other Shareholders, in each case for sale in accordance with the method of disposition specified by the requesting holders. If such registration shall be included under any Demand Registration Statement related underwritten, the Company, such officers and directors and Other Shareholders proposing to distribute their shares through such underwriting shall enter into an underwritten offering without underwriting agreement in customary form with the written consent representative of the Holders’ Representative, except Registrable Securities requested underwriter or underwriters selected for such underwriting. If and to the extent that the managing underwriter determines that marketing factors require a limitation on the number of shares to be included therein pursuant to Section 2.1(a). Subject to in such registration, then the preceding sentenceshares of Common Stock held persons other than the Company, if any of including Registrable Shares, will be reduced in such manner that the Registrable Securities registered pursuant to a Demand Registration are securities to be sold in a firm commitment underwritten offering, and shall be allocated among the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by selling holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect pro rata based on the amount, price, timing size of their ownership. No Registrable Shares or distribution any other security excluded from the registration and underwriting by reason of the Registrable Securities to be so included together with all such Other Securities, then there underwriter's marketing limitation shall be included in such offering the number or dollar amount registration and underwriting. If any holder of Registrable Securities and such Shares, officer, director or Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which Shareholder who has requested inclusion in such demand offering was requested by the Holdersregistration as provided above, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations disapproves of the Companyterms of the underwriting, and in no event shall such holder of securities may elect to withdraw therefrom by written notice to the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company managing underwriter. The securities so withdrawn shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall also be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))withdrawn from registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Uniroyal Technology Corp)
Demand Registrations. (a) At Subject to the terms and conditions hereof, solely if the Company has failed to file the Shelf Registration Statement or maintain its effectiveness as provided in Section 1.3, any time and from time Demand Shareholders (“Requesting Shareholders”) shall be entitled to time, the Holders’ Representative shall have the right by delivering one or more make written notices to requests of the Company (each, a “Demand NoticeDemand”) for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders (such amount, in the case where SL Sponsor is a Requesting Shareholder, to require include a number of Registrable Securities held by the Escrow Agent determined pursuant to the Management Shareholders Agreement) that equals or is greater than the Registrable Amount (a “Demand Registration”). Thereupon the Company towill, pursuant subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register under and by the Requesting Shareholders for disposition in accordance with the provisions intended method of disposition stated in such Demand; Table of Contents
(ii) all other Registrable Securities which the Securities Act Company has been requested to register pursuant to Section 1.1(b), but subject to Section 1.1(h); and
(iii) all Company Shares which the number Company may elect to register in connection with any offering of Registrable Securities owned by Holders pursuant to this Section 1.1, but subject to Section 1.1(h), all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and requested by such Demand Notice the additional Company Shares, if any, to be so registered registered.
(a “b) A Demand Registration”); provided, however, that a Demand Notice may only be made if shall specify (i) the amount aggregate number of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or in such Demand Registration, (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected intended method or methods of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the applicable Registrable SecuritiesRequesting Shareholder(s). Following Within three (3) Business Days after receipt of a Demand NoticeDemand, the Company shall file, as promptly as reasonably practicable, give written notice of such Demand to all Other Holders of Registrable Securities. The Company shall include (but not later than, 60 days only on a pro rata basis among the Requesting Shareholder and the Other Holders that have requested to participate in such Demand Registration based upon the relative number of Registrable Shares then held by each such Requesting Shareholder and Other Holders) in the Demand Registration covered by such Demand all Registrable Securities with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by which the Company of such Demand Notice has received a written request for inclusion therein from the Other Holders thereof within five (5) days after the Company’s notice required by this paragraph has been given, subject to paragraph (e) Section 1.1(h). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2.11.1(b), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively During each fiscal year of the Company, SL Sponsor shall have the right to request up to nine (9) Demand Registrations and/or deliver Take-Down Notices pursuant to Section 1.3, in the aggregate, and FP/TP Sponsor shall have the right to request up to three (3) Demand Registrations and/or deliver Take-Down Notices pursuant to Section 1.3, in the aggregate (of which only two (2) Take-Down Notices may be for Marketed Underwritten Shelf Offerings). Notwithstanding the foregoing, the FP/TP Sponsor shall not be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, deliver a Take-Down Notice or a Piggyback Notice or sell Registrable Securities pursuant to a registration statement, at any time when the SL Sponsor is restricted from selling Registrable Securities pursuant to Clause 6.2 or Clause 6.9 of the Management Shareholders Agreement; provided, however, that this sentence shall not be applicable in so far as it relates to Clause 6.9 of the Management Shareholders Agreement if the FP/TP Sponsor (or Far Point or Third Point individually if it is requesting a Demand Registration, delivering a Take-Down Notice or otherwise selling Registrable Securities pursuant to a registration statement that in each case would not involve sales by the other) does not possess material nonpublic information with respect to the Company or its securities and has no representative on the Company Board. A Demand Registration shall use its reasonable best efforts not be deemed to maintain the continuous effectiveness of the applicable have been effected and shall not count as a Demand Registration Statement (A) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least one year after the effective date thereof hundred eighty (180) days or such shorter period in which all Registrable Securities included in such Demand Registration Statement have actually been sold. For sold thereunder (provided that such period shall be extended for a period of time equal to the avoidance period the Holder of doubt, Registrable Securities refrains from selling any securities included in such registration statement at the foregoing sentence is not intended to limit the obligation request of the Company or the lead managing underwriter(s) pursuant to maintain the continuous effectiveness provisions of this Agreement) or (B) if, after it has become effective, such Demand Registration becomes subject, prior to one hundred eighty (180) days after effectiveness, to any stop order, injunction or other order or requirement of the Short-Commission or other Governmental Authority, other than by reason of any act or omission by the applicable Selling Stockholders.
(d) Demand Registrations shall be on Form Registration contemplated F-1 or Form F-3 if the Company is eligible under Applicable Law to register Registrable Securities on Form F-3 or, if the Company reasonably believes another registration form of the Commission would be more appropriate, such other appropriate registration form of the Commission as shall be selected by Section 2.1(h) as required by Section 2.1(h)the Company and reasonably acceptable to the Requesting Shareholders.
(e) The Company shall not be obligated to (i) subject to Section 1.1(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration for a period longer than Table of Contents one hundred eighty (180) days or (ii) effect any Demand Registration (A) within forty-five (45) days of a “firm commitment” Underwritten Offering in which all Demand Shareholders were offered “piggyback” rights pursuant to Section 1.2 (subject to Section 1.2(b)) and at least 90% of the number of Registrable Securities requested by such Demand Shareholders to be included in such Underwritten Offering were included and sold or (B) during the first year after the Closing Date, within three (3) months of the completion of any other Demand Registration.
(f) The Company shall be entitled to postpone (but not more than once in upon written notice to the Requesting Shareholders and any six-month periodOther Holders whose Registrable Securities are covered by such Demand pursuant to Section 1.1(b), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), ) the filing or initial the effectiveness of, or suspend the use of, of a registration statement for any Demand Registration Statement if in the event of a Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period, the Company delivers shall deliver to the Holders’ Representative Requesting Shareholders requesting registration and any Other Holders whose Registrable Securities are covered by such Demand pursuant to Section 1.1(b) a certificate signed by both either the Chief Executive Officer and Chief Financial Officer chief executive officer or the chief financial officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing the conditions described in the definition of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration StatementBlackout Period are met.
(g) No request for registration will count for If the purposes Majority in Interest of the limitations in Section 2.1(c) if: (A) Requesting Shareholders so advise the Holders’ Representative determines in good faith to withdraw Company as part of their Demand Registration that the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% offering of the Registrable Securities pursuant to such Demand Registration shall be in the form of an Underwritten Offering, then the right of such Requesting Shareholder or Other Holders that have requested to include Registrable Securities in such Registration shall be conditioned upon such Requesting Shareholder’s participation in such Underwritten Offering and the inclusion of such Requesting Shareholder’s Registrable Securities in such Underwritten Offering to the extent provided herein (for the avoidance of doubt, in the event that SL Sponsor acts as Requesting Shareholder on behalf of the Escrow Agent, including the Registrable Securities held by the Escrow Agent and included in the applicable registration relating Underwritten Offering in accordance with the Management Shareholders Agreement). All such Requesting Shareholders and Other Holders (including the Escrow Agent and, if required, Management Shareholders) proposing to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the distribute their Registrable Securities requested by through an Underwritten Offering under this Section 1.1(g) shall enter into an underwriting agreement in customary form with the Holders to be included in the registration are not so included Underwriter(s) selected for such Underwritten Offering pursuant to Section 2.1(b1.1(i), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoingIf, in connection with a Demand Registration or Shelf Offering that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company will use that, in its reasonable best efforts (their) opinion, the inclusion of all of the securities sought to remain qualified for be registered in connection with such Demand Registration or Shelf Offering would adversely affect the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first pro rata among the Holders that have requested to participate in such Demand Registration or Shelf Offering based on Form S-3 the relative number of Registrable Shares then held by each such Holder (including, without limitationin the event that SL Sponsor has included Registrable Securities held by the Escrow Agent, such Registrable Shares, as if availablethey were held by SL Sponsor); (ii) second, an automatic shelf other securities of the Company duly requested to be included in such registration statement for by other persons, pro rata on the basis of the amount of such other securities requested to be included or such other allocation method determined by the Company; and (iii) third, securities the Company proposes to sell.
(i) Any time that a “well-known seasoned issuer” as defined Demand Registration or Shelf Offering involves an Underwritten Offering, the Majority in Rule 405 under Interest of the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”Requesting Shareholders shall select the investment banker(s) and the Company shall file, manager(s) that will serve as promptly managing underwriters (including which of such managing underwriters will serve as reasonably practicable after the execution lead or co-lead) and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, underwriters and the sale on a continuous or delayed basis (notwithstanding anything their respective economics with respect to the contrary in Section 2.1(d)) of, the offering of such Registrable Securities, pursuant ; provided that such investment banker(s) and manager(s) shall be subject to Rule 415 under the Securities Act, to permit the distribution prior written consent of the Registrable Securities in accordance with the methods of distribution elected by the HoldersCompany, including by means of an underwritten offering. Upon filing a Short-Form Registrationnot to be unreasonably withheld, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending conditioned or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))delayed.
Appears in 1 contract
Sources: Registration Rights Agreement (Global Blue Group Holding AG)
Demand Registrations. (a) At any time and from time Demand by Holders. -----------------
(i) Subject to timeSection 2(e), the Holders’ Representative shall have the right by delivering one or more each Initial Holder may make a written notices request to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms for registration of this Agreement, register under and in accordance with the provisions all or any part of the Securities Act the number of Registrable Securities owned by Holders and requested held by such Demand Notice requesting Holder; provided that the estimated market value of the -------- Registrable Securities to be so registered (a “Demand Registration”)is at least $10 million in the aggregate or not less than 5% of the Registrable Securities; provided, however, and provided further that Ventas shall be entitled -------- ------- to request a Demand Notice may only Registration with respect to a Ventas Stockholder Distribution without regard to the dollar or percentage limits set forth above. Any such requested registration shall hereinafter be made if referred to as a "Demand ------ Registration." Each request for a Demand Registration shall specify the ------------ aggregate amount of Registrable Securities requested to be registered is either and the intended methods of disposition thereof.
(iii) at least 20% Within ten (10) days following receipt of any request for a Demand Registration, the Company shall deliver written notice of such request to all other Holders of Registrable Securities. Thereafter, subject to Section 3(e), the Company shall include in such Demand Registration any additional Registrable Securities which the Holder or Holders thereof have requested in writing be included in such Demand Registration, provided that all requests -------- therefor have been received by the Company within ten (10) days of the Company's having given the applicable notice to such Holder or Holders. All such requests shall specify the aggregate number amount of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts be registered and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected intended method or methods of disposition distribution of the applicable Registrable Securitiessame. Following The Company also may elect to include in such registration additional securities of the Company to be registered thereunder, including securities to be sold for the Company's own account or for the account of Persons who are not Holders.
(iii) As promptly as practicable following receipt of a request for a Demand Notice, the Company shall file, as promptly as reasonably practicableRegistration, but not in no event later than, than the later of (x) 180 days following the Effective Date and (y) 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after following receipt by the Company of such Demand Notice (request, the Company shall, subject to paragraph (e) of this Section 2.1)the terms hereof and applicable law, use its reasonable best efforts to file a Registration Statement registration statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement registration statement to be declared effective under the Securities Act as promptly soon as practicable after the filing thereof.
thereafter and to keep such registration statement effective for not less than ninety (b90) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
days (i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in during which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence a prospectus is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 delivered under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Demand Registrations. (ai) At Subject to Sections 2.2 and 2.4 below, at any time and from time to timetime after one hundred twenty (120) days after the Asset Purchase Closing Date, the Holders’ Representative any Holder shall have the right to request that the Company effect a registration under the Securities Act of all of such Holder's Registrable Securities, or any part of such Holder's Registrable Securities. Any such request for registration by delivering one or more written notices any Holder pursuant to this Section 2.1 shall hereinafter be referred to as a "Demand Registration Request," and the registrations so requested are referred to herein as "Demand Registrations" (with respect to any Demand Registration, the Holder(s) making such demands for registration being referred to as the "Initiating Holder"). Each Demand Registration Request shall be delivered in writing to the Company (each, a “Demand Notice”) to require and shall specify the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the aggregate amount of Registrable Securities requested to be registered is either (i) at least 20% included in such registration by the Company and the intended method of the aggregate number of Registrable Securities then held by all Holders or distribution thereof.
(ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of After receiving a Demand NoticeRegistration Request, the Company shall fileshall, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), file a Registration Statement registration statement relating to the offer and sale of the such Registrable Securities requested to be included therein by the Holders thereof for distribution in accordance with the methods such intended method of distribution elected by such Holders (a “Demand Registration Statement”) distribution, and shall use its reasonable best efforts to cause such Registration Statement registration statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofAct.
(b) No securities shall be included under The Company, subject to Sections 2.2 and 2.4, may elect to include in any Demand Registration Statement related registration statement and offering made pursuant to an underwritten offering without this Section 2.1 (i) shares of Common Stock held by the written consent Company as treasury shares, and (ii) any other shares of the Holders’ Representative, except Registrable Securities Common Stock which are requested to be included therein in such registration pursuant to Section 2.1(a). Subject to the preceding sentence, if any exercise of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested piggyback registration rights granted by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holderCompany.
(c) The Holders collectively shall be entitled A Holder may withdraw its request to request no more than three include Registrable Securities in a Demand Registrations of Registration at any time prior to the Company, and in no event shall related registration statement's being declared effective by giving written notice to the Company of its intent to withdraw; provided that such Holder shall not be required deemed to effect more than one have made a Demand Registration Registration, if such Holder pays any expense or liability incurred by the Company or any other Holder in any six month periodconnection with or arising from such request.
(d) In the event A registration of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is shall not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, constitute a Demand Registration Statement if the Company delivers until a registration statement with respect to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative Registrable Securities shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statementbecome effective.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)).
Appears in 1 contract
Demand Registrations. (a) At any time and from time to timeThe Company, following the Holders’ Representative shall have consummation of an Qualified IPO, upon the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms request of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) Purchasers holding at least 2025% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and "INITIATING HOLDER(S)"), shall use its reasonable best efforts to cause such Registration Statement to be declared effective register under the Securities Act as promptly as practicable after any reasonable portion of Registrable Securities with an aggregate offering price of not less than $100,000 held by the filing thereof.
Initiating Holder(s) (b) No securities shall be included under any Demand Registration Statement related to including, at the election of such Initiating Holder(s), in an underwritten offering) and bear all Registration Expenses in connection with such offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein in a manner consistent with Section 3.1(c) below and shall enter into such other agreements in furtherance thereof (such registration pursuant to this Section 2.1(a3.1(b). Subject to , the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering"DEMAND REGISTRATION"), and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold Company shall provide customary indemnifications in such offering, together instances (in a manner consistent with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount indemnification provisions of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(sthis Article III) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer Initiating Holder(s) and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, any such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative underwriters. Purchasers shall have the right to notify the Company that it has determined that the initiate one (1) Demand Registration Statement relating pursuant to this Section 3.1(b). A registration shall not count as a Demand Registration unless and until the registration statement relating thereto has been declared effective by the SEC and not withdrawn. If the Demand Registration requested by Purchasers is in the form of an underwritten offering, Purchasers shall designate the underwriter or underwriters to be abandoned or withdrawnutilized in connection such offering, in which event subject to the consent of the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders)unreasonably withheld. Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts shall not be obligated to remain qualified effect a Demand Registration if, at the time of such request, all such Registrable Securities are eligible for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) and the Company shall file, as promptly as reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)public by the Initiating Holder(s) of, the Registrable Securities, pursuant to without registration under Rule 415 144 under the Securities Act, to permit with such sale not being limited by either the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending timing or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))volume restrictions thereunder.
Appears in 1 contract
Sources: Investor's Rights Agreement (Wj Communications Inc)
Demand Registrations. (a) At Subject to Section 5.1(d), at any time and from time to timetime after the one-year anniversary of the Closing, the Holders’ Representative any Holder shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act and/or a prospectus under applicable Canadian securities laws covering all or any part of their respective Registrable Securities, by delivering a written request therefor to the Company specifying the number of Registrable Securities owned by Holders and requested to be included in such registration by such Holder(s) and the intended method of distribution thereof. All such requests pursuant to this Section 5.1(a) are referred to herein as "Demand Notice Registration Requests" and the registrations so requested are referred to be so registered herein as "Demand Registrations" (a “with respect to any Demand Registration”, the Holder making such demand for registration being referred to as the "Initiating Holder"); provided. As promptly as practicable, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following but no later than 15 days after receipt of a Demand NoticeRegistration Request, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by give written notice (the Company "Demand Exercise Notice") of such Demand Notice (subject Registration Request to paragraph (e) all Holders of this Section 2.1), a Registration Statement relating to the offer and sale record of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereofSecurities.
(b) No securities The Company shall be included under any include in a Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of (i) the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, of the Initiating Holder and the managing underwriter(s(ii) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities of any other Holder (collectively, the "Other Holders ") that shall have made a written request to be so included together with all such Other Securities, then there shall be included the Company for inclusion thereof in such offering registration (which request shall specify the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such maximum number of Registrable Securities and Other Securities shall intended to be allocated for inclusion as follows:
(idisposed of by such Holder(s)) first, within 30 days after the Registrable Securities for which inclusion in such demand offering was requested by receipt of the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holderDemand Exercise Notice.
(c) The Company shall, as expeditiously as possible following a Demand Registration Request, use its best efforts to (i) effect the registration under the Securities Act (including by means of a shelf registration pursuant to Rule 415 under the Securities Act if so requested and if the Company is then eligible to use such a registration) of the Registrable Securities which the Company has been so requested to register by such Holder, for distribution, in accordance with such intended method of distribution, and (ii) if requested by the Initiating Holder, obtain acceleration of the effective date of the registration statement relating to such registration.
(d) The rights of Holders collectively of Registrable Securities to request Demand Registrations pursuant to Section 5.1(a) are subject to the following limitations: (i) the Company shall not be obligated to effect a Demand Registration within six months after the effective date of any other registration of equity securities by the Company (other than pursuant to a registration on Form S-4 or Form S-8 or any successor or similar form that is then in effect) which was not effected on Form S-3 (or any successor or similar short-form registration statement), provided, however, that this clause (i) shall not be applicable with respect to any Registrable Securities beneficially owned by any Holder if in connection with a Piggyback Registration such Holder requested during such six month period to have such Registrable Securities included in such Piggyback Registration and Registrable Securities with a Current Market Value exceeding $25,000,000 (valued at the time of such request) were not included pursuant to Section 5.2(d), (ii) in no event shall the Company be required to effect, in the case of SPE, more than four Demand Registrations, in the case of USI, more than four Demand Registrations, and, in the case of the Claridge Group, more than one Demand Registration, (iii) the Company shall not be obligated to effect a Demand Registration by either SPE or USI if a Demand Registration initiated by either SPE or USI shall have been effected in the preceding 12 months, and (iv) the Company shall not be obligated to effect a Demand Registration the reasonably anticipated aggregate price to the public of which would not exceed $25,000,000. Upon assignment by a Stockholder of the right to initiate a Demand Registration to a Third Party Transferee in accordance with Section 4.5(b)(iv), such Stockholder shall cease to have the right to initiate such Demand Registration and the number of Demand Registrations to which such Stockholder shall be entitled to request no more than three Demand Registrations of as set forth in the Company, and in preceding sentence shall be reduced accordingly. In no event shall the Company be required to effect more than one nine Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts Registrations pursuant to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h)this Agreement.
(e) The Company shall select the registration statement form for any registration pursuant to this Section, provided, that if any registration requested pursuant to this Section which is proposed by the Company to be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), effected by the filing of a registration statement on Form S-3 (or initial effectiveness ofany successor or similar short-form registration statement) shall be in connection with an underwritten public offering, or suspend the use of, a Demand Registration Statement and if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of managing underwriter shall advise the Company certifying in writing that, in its opinion, the good faith judgment use of the Board another form of Directors registration statement is of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed importance to the publicsuccess of such proposed offering, the premature disclosure of which would materially adversely affect the Companythen such registration shall be effected on such other form.
(f) A registration requested pursuant to this Section 5.1 will not be deemed to have been effected unless it has become effective, provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is subject to any stop order, injunction or other order or requirement of the Commission or other governmental agency or court, such registration will be deemed not to have been effected.
(g) If a requested registration pursuant to this Section involves an underwritten offering, the Company shall have the right to select in good faith the investment banker or bankers and managers to administer the offering; provided, however, that such investment banker or bankers and managers shall be reasonably satisfactory to the Initiating Holder. The Holders’ Representative Initiating Holder shall notify the Company if such Holder objects to any investment banker or manager selected by the Company pursuant to this Section 5.1(g) within 10 Business Days after the Company has notified such Holder of such selection.
(h) If the managing underwriter of any underwritten offering shall advise the Holders participating in a Demand Registration that the Registrable Securities covered by the registration statement cannot be sold in such offering within a price range acceptable to the Initiating Holder, then the Initiating Holder shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration registration statement be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such requestwithdraw, such registration is adversely affected by any stop orderstatement. If a requested registration pursuant to this Section 5.1 involves an underwritten offering and the managing underwriter advises the Company that, injunction or other order or requirement in its opinion, the number of securities requested to be included in such registration (including securities of the SEC or other Governmental Entity or courtCompany which are not Registrable Securities) exceeds the number which can be sold in such offering within a price range acceptable to the Initiating Holder, (D) more than 10% of the Company will include in such registration only the Registrable Securities requested to be included in such registration pursuant to this Section 5.1 In the event that the number of Registrable Securities requested to be included in such registration exceeds the number which, in the opinion of such managing underwriter, can be sold in such offering within a price range acceptable to the Initiating Holder, the Company shall include in such registration the number of Registrable Securities proposed to be sold by the Initiating Holder and, to the extent the managing underwriter believes that additional Registrable Securities can be sold in such offering within such price range, the number of Registrable Securities proposed to be sold by the Other Holders, allocated pro rata among the Other Holders on the basis of the relative number of shares of Registrable Securities requested to be registered pursuant to clause (ii) of Section 5.1(b) by each such Holder. In the event that the number of Registrable Securities requested by all Holders to be included in such registration is less than the registration are not so included pursuant to Section 2.1(b)number which, or (E) in the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with opinion of the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrarymanaging underwriter, can be sold, the Company will pay all expenses (may include in accordance with Section 2.8) such registration a number of securities that the Company proposes to sell up to the number of securities that, in connection with any request for registration pursuant the opinion of the underwriter, can be sold in such offering within a price range acceptable to this Agreement regardless of whether or not such request counts toward the limitation set forth aboveInitiating Holder.
(hi) In addition to the foregoing, If the Company will use its reasonable best efforts at any time grants to remain qualified for any other holders of Voting Shares (or securities that are convertible, exchangeable or exercisable into Voting Shares) any rights to request the Company to effect the registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) Act of any such Voting Shares (or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”such securities) and on terms more favorable to such holders than the Company shall fileterms set forth in this Section 5.1, as promptly as reasonably practicable after then the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration Holders shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related entitled to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))more favorable rights and benefits.
Appears in 1 contract
Sources: Stockholders Agreement (Bronfman Charles Rosner Discretionary Trust)
Demand Registrations. (a) At Subject to the terms and conditions hereof, (x) solely during any time and from time period that the Company is then-ineligible under applicable Law to timeregister Registrable Securities on Form S-3 (or a successor form) or, if the Holders’ Representative Company is so eligible but has failed to comply with its obligations under Section 4.3 or (y) following the expiration of the Company’s obligation to keep the Shelf Registration Statement continuously effective pursuant to Section 4.3(c), but only if there is no Shelf Registration Statement then in effect, any Demand Stockholders (“Requesting Stockholders”) shall have the right by delivering one or more be entitled to make up to five written notices to requests of the Company (each, a “Demand NoticeDemand”) for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Stockholders that (A) equals or is greater than the Registrable Amount or (B) if less than the Registrable Amount, represents all of the Requesting Stockholders’ Registrable Securities (so long as not less than $50 million (based on the anticipated offering price (as reasonably determined in good faith by the Company)), without regard to require any underwriting discount or commission) (a “Demand Registration” and such registration statement, a “Demand Registration Statement”). Thereupon, the Company towill, pursuant subject to the terms of this Agreement, use its commercially reasonable efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register under and by the Requesting Stockholders for disposition in accordance with the provisions intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which the Securities Act Company has been requested to register pursuant to Section 4.1(b), but subject to Section 4.1(g); and
(iii) all shares of Company Common Stock which the number Company may elect to register in connection with any offering of Registrable Securities owned by Holders pursuant to this Section 4.1, but subject to Section 4.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and requested by such Demand Notice the additional shares of Company Common Stock, if any, to be so registered registered.
(a “b) A Demand Registration”); provided, however, that a Demand Notice may only be made if shall specify: (i) the amount aggregate number of Registrable Securities requested to be registered is either (i) at least 20% of the aggregate number of Registrable Securities then held by all Holders or in such Demand Registration, (ii) reasonably expected to generate aggregate gross proceeds on sale (prior to deducting underwriting discounts and commissions and offering expenses) of at least $25 million. A Demand Notice shall also specify the expected intended method or methods of disposition in connection with such Demand Registration, and (iii) the identity of the applicable Registrable SecuritiesRequesting Stockholder(s). Following Within 10 days after receipt of a Demand NoticeDemand, the Company shall file, as promptly as reasonably practicable, but not later than, 60 days give written notice of such Demand to all other holders of Registrable Securities. The Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to any underwritten offering, or 30 days with respect to any other offering, after receipt by which the Company of such Demand Notice (has received a written request for inclusion therein within 10 days after the Company’s notice required by this Section 4.1(b) has been given, subject to paragraph (e) of this Section 2.14.1(g), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance . Each such written request shall comply with the methods requirements of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) No securities shall be included under any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein pursuant to Section 2.1(a). Subject to the preceding sentence, if any of the Registrable Securities registered pursuant to a Demand Registration are to be sold as set forth in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicablethis Section 4.1(b), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one A Demand Registration in any six month period.
(d) In the event of shall not be deemed to have been effected and shall not count as a Demand Registration, Registration (i) unless the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Demand Registration Statement with respect thereto has become effective and has remained effective for a period of at least one year after the effective date thereof 180 days or such shorter period in which all Registrable Securities included in such Demand Registration Statement have actually been sold. For the avoidance sold or otherwise disposed of doubtthereunder (provided, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company that such period shall be entitled to postpone (but not more than once in any six-month period), extended for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers equal to the Holders’ Representative a certificate signed by both period the Chief Executive Officer and Chief Financial Officer holders of Registrable Securities refrain from selling any securities included in such registration statement at the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing request of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed lead managing underwriter(s) pursuant to the publicprovisions of this Agreement) or (ii) if, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that after it has determined that the Registration Statement relating to a become effective, such Demand Registration be abandoned or withdrawnbecomes subject, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating 180 days after effectiveness, to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC Commission or other Governmental Entity Authority, other than by reason of any act or courtomission by the applicable Selling Stockholders.
(d) Demand Registrations shall be on such appropriate registration form of the Commission as shall be selected by the Company and reasonably acceptable to the Requesting Stockholders.
(e) The Company shall not be obligated to (i) subject to Section 4.1(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration for a period longer than 180 days or (Dii) more than 10effect any Demand Registration (A) within four months of a “firm commitment” Underwritten Offering in which all Demand Stockholders were offered “piggyback” rights pursuant to Section 4.2 (subject to Section 4.2(b)) and at least 50% of the number of Registrable Securities requested by the Holders such Demand Stockholders to be included in such Demand Registration were included, (B) within four months of the registration are not so included completion of any other Demand Registration (including, for the avoidance of doubt, any Underwritten Offering pursuant to Section 2.1(bany Shelf Registration Statement), provided that a Pledgee desiring to sell Registrable Securities upon foreclosure of such Demand Stockholder’s Registrable Securities shall be entitled to request a Demand Registration to permit the resale of such Registrable Securities without regard to the limitations in this clause (B) in respect of the first such demand by such Pledgee in respect of any such Registrable Securities, and (C) if, in the Company’s reasonable judgment, it is not feasible for the Company to proceed with the Demand Registration because of the unavailability of audited or other required financial statements of the Company or any other Person; provided, that the Company shall use its commercially reasonable efforts to obtain such financial statements as promptly as practicable.
(Ef) The Company shall be entitled to (i) postpone (upon written notice to the Demand Stockholders) the conditions filing or the effectiveness of a registration statement for any Demand Registration, (ii) cause any Demand Registration Statement to closing specified be withdrawn and its effectiveness terminated and (iii) suspend the use of the prospectus forming the part of any registration statement, in each case in the event of a Blackout Period until the expiration of the applicable Blackout Period. Upon notice by the Company to the Demand Stockholders of any underwriting agreement such determination, each Demand Stockholder covenants that, subject to applicable Law, it shall keep the fact of any such notice strictly confidential and promptly halt any offer, sale, trading or purchase agreement entered into other Transfer by it or any of its Affiliates of any Registrable Securities for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration Statement, each prospectus included therein, and any amendment or supplement thereto by it and any of its Affiliates for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and, if so directed in writing by the Company, will deliver to the Company any copies then in the Demand Stockholder’s possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice.
(g) If, in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contraryDemand Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company will pay that, in its (their) opinion, the inclusion of all expenses (in accordance with Section 2.8) of the securities sought to be registered in connection with any request for such Demand Registration would adversely affect the success thereof, then the Company shall include in such registration pursuant statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to this Agreement regardless the number of whether Registrable Securities requested to be included in such Demand Registration by the Demand Stockholders, which, in the opinion of the lead managing underwriter(s), can be sold without adversely affecting the success thereof, pro rata among such Demand Stockholders on the basis of the number of such Registrable Securities requested to be included by such Demand Stockholders; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or not such request counts toward other allocation method determined by the limitation set forth aboveCompany.
(h) In addition Any time that a Demand Registration involves an Underwritten Offering, the Requesting Stockholder(s) shall select the investment banker(s) and manager(s) that will serve as managing underwriters (including which such managing underwriters will serve as lead or co-lead) and underwriters with respect to the foregoingoffering of such Registrable Securities; provided, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”that such investment banker(s) and the Company manager(s) shall file, as promptly as be reasonably practicable after the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything acceptable to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d))Company.
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Demand Registrations. (a) At Warburg may at any time following the date hereof and from time to timeon not more than five separate occasions in the aggregate and not more frequently than once during any 180 day period, the Holders’ Representative shall have the right by delivering one or more written notices to the Company (each, a “Demand Notice”) to require the Company to, pursuant to the terms of this Agreement, register file a registration statement under and in accordance with the provisions of the Securities Act the number in respect of Registrable Securities owned by Holders and requested by such Demand Notice to be so registered (all or a “Demand Registration”); provided, however, that a Demand Notice may only be made if the amount of Registrable Securities requested to be registered is either (i) at least 20% portion of the aggregate number Investor Shares then Beneficially Owned by Warburg or by any other person that Beneficially Owns Investor Shares and who acquired such Investor Shares in connection with such person's status as a partner in any partnership in which Warburg or any of its Affiliates is the general partner (all such Investor Shares, the "WARBURG REGISTRABLE SHARES") (PROVIDED that such request covers Warburg Registrable Securities then held by all Holders or (ii) reasonably expected to generate aggregate gross proceeds Shares with a Market Value on sale (prior to deducting underwriting discounts and commissions and offering expenses) the date of the Demand Request of at least $25 million), by delivering to the Company a written notice stating that such right is being exercised, specifying the number of Common Shares to be included in such registration (the shares subject to such request, the "WARBURG DEMAND SHARES") and describing the in- tended method of distribution thereof (a "WARBURG DEMAND REQUEST"). A Upon receiving a Warburg Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand NoticeRequest, the Company shall file(1) provide written notice of the Warburg Demand Request, pursuant to Section 4.3 hereof, to H&F and each other Investor, (2) use reasonable efforts to file as promptly as reasonably practicable, but not later than, 60 days with respect to any underwritten offering, or 30 days with respect to practicable a registration statement on such form as the Company may reasonably deem appropriate providing for the registration of the sale of such Warburg Demand Shares and any other offering, after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 2.1), a Registration Statement relating to the offer and sale of the Registrable Securities requested Investor Shares to be included therein by pursuant to Sections 4.3 and 4.4 hereof pursuant to the Holders thereof in accordance with the methods intended method of distribution elected by such Holders and (a “Demand Registration Statement”3) and shall after the filing of an initial version of the registration statement, use its reasonable best efforts to cause such Registration Statement registration statement to be declared effective under the Securities Act as promptly as practicable after the date of filing thereof.
(b) No securities shall be included under any of such registration statement. Any Demand Registration Statement related to an underwritten offering without the written consent of the Holders’ Representative, except Registrable Securities requested to be included therein filed pursuant to Section 2.1(a). Subject the request of Warburg may, subject to the preceding sentenceprovisions of Section 4.4 below, if any include other Common Shares that the Company is required to include in such registration statement by virtue of existing agreements between the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) holders of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the amount, price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder.
(c) The Holders collectively shall be entitled to request no more than three Demand Registrations of the Company, and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.1(h) as required by Section 2.1(h).
(e) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time not in excess of 60 days (and not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement if the Company delivers to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the Company certifying that, in the good faith judgment of the Board of Directors of the Company, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company.
(f) The Holders’ Representative shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement.
(g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if: (A) the Holders’ Representative determines in good faith to withdraw the proposed registration prior to the effectiveness of the Registration Statement relating to such request due to marketing conditions or regulatory reasons relating to the Company, (B) the Registration Statement relating to such request is not declared effective within 60 days of the date such Registration Statement is first filed with the SEC (other than solely by reason of the applicable Holders having refused to proceed), (C) prior to the sale of at least 90% of the Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (E) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (in accordance with Section 2.8) in connection with any request for registration pursuant to this Agreement regardless of whether or not such request counts toward the limitation set forth above.
(h) In addition to the foregoing, the Company will use its reasonable best efforts to remain qualified for registration on Form S-3 (including, without limitation, if available, an automatic shelf registration statement for a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act) or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”) Common Shares and the Company shall file, as promptly as reasonably practicable after (the execution and delivery of this Agreement, but not later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in accordance with the methods of distribution elected by the Holders, including by means of an underwritten offering. Upon filing a Short-Form Registration, the Company shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to the contrary in Section 2.1(d)"EXISTING REGISTRATION RIGHTS").
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