Demand Registrations. (a) Each Holder shall have the right (the "Demand Right") during the term of this Agreement to require the Company to file a registration statement under the Securities Act in respect of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering. (b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration. (c) Notwithstanding anything contained in this Section 3.01: (i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares; (ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date, (iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement (iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law; (v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and (vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto). (d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them. (e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.
Appears in 4 contracts
Sources: Registration Rights Agreement (Partner Communications Co LTD), Registration Rights Agreement (Partner Communications Co LTD), Registration Rights Agreement (Partner Communications Co LTD)
Demand Registrations. (a) Each Following the Closing of the IPO, but subject to the terms of any “lock-up agreement” entered into with an underwriter (unless waived by such underwriter), a Holder shall have the right (the "Demand Right") during the term of this Agreement to require may request that the Company to file a registration statement register under the Securities Act in respect of all or some any portion of the Registrable Shares Securities held by such Holder (but Holder, having an anticipated aggregate offering price, net of Selling Expenses, of not less than a number US$5,000,000. Upon receipt of such request, the Company shall within seven (7) days deliver notice of such request to all Holders (the “Demand Notice”), if any, who shall then have seven (7) days to notify the Company in writing of their desire to be included in such registration. If the request for registration contemplates an underwritten public offering, the Company shall state such in the written notice and in such event the right of any holder of Registrable Shares that represents at least 2.65% Securities to participate in such registration shall be conditioned upon their participation in such underwritten public offering and the inclusion of their Registrable Securities in the then outstanding Ordinary Shares of underwritten public offering to the Company)extent provided herein. Subject to the provisions of subsection (bSection 3(b) below, the Company will use its reasonable best efforts to file a registration statement as promptly as practicable, but in no event not later than 45 sixty (60) days after such Demand Notice (subject, however, to the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such requestCompany’s independent auditors providing any required consent), the Company and shall file with the Commission and thereafter use its reasonable best efforts to cause such registration statement to be declare declared effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify Act as promptly as practicable after the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringfiling thereof.
(b) Anything in this Agreement to Notwithstanding the contrary notwithstandingforegoing, the Company shall not be entitled required to postpone and delay the filing effect registration pursuant to a request of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if a Holder under this Section 2: (i) more than two (2) times for each of the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereofKibbutz and Tene separately, (ii) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of a Company-initiated registration or Company Underwritten Offering (as defined below), provided, however, that the Company is subject actively employing reasonable best efforts to an existing contractual obligation not cause such registration statement to engage be filed and to become effective or to cause such Company Underwritten Offering to be effected, and provided, further that nothing in a public offeringthis subparagraph (ii) shall derogate from the Company’s obligations under Section 5 hereof, (iii) during the financial statements of period that is one hundred and eighty (180) days following the effective date of, a Company-initiated registration or Company for the fiscal period most recently ended prior to such written request are not yet availableUnderwritten Offering, or (iv) if the Initiating Holder proposes to dispose of Registrable Securities that may be immediately registered on Form F-3 pursuant to a request made pursuant to Section 3 hereof.
(c) If the Company shall determine furnish to such Holders a letter signed by the Chief Executive Officer of the Company stating that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Company’s Board of Directors of a Potential Material Event (as defined below) has occurred (a “Management Letter”), the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful ’s obligation to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its reasonable best efforts to cause effect such registration under Section 2(c) shall be deferred from the date of receipt of the Management Letter until such Holders receive written notice from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event, such period not to exceed sixty (60) days, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly. A registration will not count as a requested registration under this Section 2 until the registration statement relating to such Demand Registration to be registration has been declared effective as promptly as practicable unless such Holder shall have, prior to by the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand RegistrationCommission and the shares have been registered for trade.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.
Appears in 4 contracts
Sources: Registration Rights Agreement (Caesarstone Ltd.), Registration Rights Agreement (Tene Growth Capital III (G.P.) Co Ltd.), Registration Rights Agreement (Mifalei Sdot-Yam Agricultural Cooperative Society Ltd.)
Demand Registrations. (a) Each Holder shall For any Underwritten Offering pursuant to Section 9.1 above, a majority in interest of the Initiating Holders will have the right to select the managing underwriter(s) or underwriters to administer such offering (but subject to the "Demand Right") during Company’s reasonable approval). If requested by the term of this Agreement to require underwriters, the Company and each Registrable Securities Holder participating in such registration will enter into an underwriting agreement with the managing underwriter(s), such agreement to file a registration statement under be reasonably satisfactory in substance and form to the Company, the Initiating Holders and the underwriters, and, unless consented to by Initiating Holders, to contain such 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 9.14. The Company will cooperate with the Registrable Securities Act in respect of all or some Holders of the Registrable Shares held Securities proposed to be distributed by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% underwriters in any such Underwritten Offering in the negotiation of the then outstanding Ordinary Shares underwriting agreement, and the Purchaser will give consideration to the reasonable suggestions of the Company)Company regarding the form thereof. Subject Such Registrable Securities Holders of the Registrable Securities to be distributed by such underwriters will be parties to such underwriting agreement, which underwriting agreement will, unless consented to by the provisions of subsection Initiating Holders, (bi) belowcontain such representations and warranties by, as promptly as practicable, but in no event later than 45 days after and the Company receives a written request from such Holder demanding that other agreements on the Company so register the number of Registrable Shares specified in such requestpart of, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests are customarily made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment by issuers in underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereofofferings, (ii) provide that any or all of the Company is subject conditions precedent to an existing contractual obligation not the obligations of such underwriters under such underwriting agreement also will be conditions precedent to engage in a public offeringthe obligations of such Registrable Securities Holders, and (iii) contain such representations and warranties by, and the financial statements of other agreements on the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holderpart of, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective Registrable Securities Holders as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be are customarily made by a Holder during the pendency of any lock-up period imposed selling stockholders in connection with a underwritten public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto)offerings.
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.
Appears in 3 contracts
Sources: Convertible Note Purchase Agreement (Berkshire Grey, Inc.), Bond Purchase Agreement (Sprint Nextel Corp), Bond Purchase Agreement (Starburst II, Inc.)
Demand Registrations. (a) Each Holder shall have At any time after the right date hereof, (the "Demand Right"x) during the term of this Agreement to require the Company to file a registration statement under the Securities Act in respect of all Majority Interest or some (y) VS Investors holding a majority of the Registrable Shares Securities held by such Holder all VS Investors may notify the Company that they intend to offer or cause to be offered for public sale all or any portion of their Registrable Securities (but representing offering proceeds aggregating not less than a number of Registrable Shares that represents at least 2.65% of $10 million) in the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares manner specified in such request. Upon receipt of such request, the Company shall file with promptly deliver notice of such request to all Persons holding Registrable Securities who shall then have thirty (30) days to notify the Commission Company in writing of their desire to be included in such registration. If the request for registration contemplates an underwritten public offering, the Company shall state such in the written notice and thereafter in such event the right of any Person to participate in such registration shall be conditioned upon their participation in such underwritten public offering and the inclusion of their Registrable Securities in the underwritten public offering to the extent provided herein. The Company shall expeditiously prepare and file, and use its reasonable best efforts to cause to be declare effective promptly a become effective, the registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as Securities whose holders request participation in such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant Act and to this Section 3.01 (a) shall specify the amount of the qualify such Registrable Shares to be registered. The Demand Registration shall be Securities for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstandingsale under any state blue sky law; provided, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereofhowever, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file effect registration pursuant to a registration statement within 180 days request under this Section 2 more than two (2) times pursuant to (x) above or one (1) time pursuant to (y) above for the holders of the effective date of a prior registration statement filed Registrable Securities as a result of group. Notwithstanding anything to the contrary contained herein, if the Company receives a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
under this Section 2, then (ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(ivi) the Company shall not be required may advise the requesting Investors, within fifteen (15) days of its receipt of such request, that it intends to file a registration statement if for the filing primary issuance of securities in an underwritten public offering, and (ii) assuming that the Company files such registration statement within seventy-five (75) days of its receipt of such a request, the Company's registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company obligations under this Section 2 shall not apply with respect to such request and no additional request may be required to file a registration statement if made under this Section 2 within one hundred eighty (180) days after the filing effective date of such registration statement. In addition, the Company may postpone the filing or the transactions contemplated by effectiveness of any registration statement pursuant to this Section
(b) If a requested registration pursuant to Section 2(a) involves an underwritten public offering and the managing underwriter of such fling, would offering determines in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares securities sought to be offered or (ii) result in a greater number of Ordinary Shares being offered than the should be limited due to market could reasonably absorbconditions, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares securities to be included in such registration underwritten public offering shall be allocated pro rata among all requesting Holders on reduced to a number deemed satisfactory by such managing underwriter, provided that the basis of shares to be excluded shall be determined in the relative number of following sequence: (i) first, securities originally requested held by any other Persons (other than the Investors holding Registrable Securities) not having either registration rights or contractual, incidental "piggy back" rights to include such securities in the registration statement, (ii) second, shares sought to be registered by the Company, and (iii) third, Registrable Securities, it being understood that no shares shall be registered for the account of the Company or any shareholder other than the Investors unless all Registrable Securities for which Investors have requested registration have been registered. If there is a reduction of the number of Registrable Securities pursuant to clauses (i) or (iii), such reduction shall be made on a pro rata basis (based upon the aggregate number of shares of Registrable Securities held by the holders in each of themtranche and subject to the priorities set forth in the preceding sentence).
(ec) With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, the managing underwriter shall be chosen by the Investors holding not less than a Majority Interest of the Registrable Securities to be sold in such offering, subject to the Company's consent, which consent shall not be unreasonably withheld, conditioned or delayed. The Company shall be entitled may not cause any other registration of securities for sale for its own account (other than a registration effected solely to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of implement an offering involving employee benefit plan or a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends transaction to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price which Rule 145 of the Ordinary Shares Securities Act is applicable) to become effective within one hundred eighty (180) days following the effective date of any registration required pursuant to this Section 2 or such lesser period as may be offered or (ii) result in a greater number of Ordinary Shares being offered than consented to by the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationmanaging underwriter.
Appears in 3 contracts
Sources: Merger Agreement (Omniture, Inc.), Registration Rights Agreement (Websidestory Inc), Merger Agreement (Websidestory Inc)
Demand Registrations. (ai) Each Holder shall have Subject to the right (the "Demand Right") during the term terms and conditions of this Agreement to require Agreement, at any time following the Closing Date, each Purchaser may request the Company to register under the Securities Act all or any portion of the Registrable Securities held by such 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 $250,000,000. Such request shall specify the intended method of disposition thereof by such 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 statement under the Securities Act in respect of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after on Form S-3 and the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such requestis then ASR Eligible, the Company shall file with the Commission and thereafter use its commercially reasonable best efforts to cause the Registration Statement to be declare 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”). Such Purchaser may revoke a request pursuant to this Section 9.1(a)(i) prior to the effective promptly date of the corresponding Registration Statement; provided, that such request shall count as one of such Purchaser’s demand requests referred to in Section 9.1(a)(ii) unless such 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 such Purchaser revokes a registration statement demand pursuant to this Section 9.1(a)(i) within twenty-four (a "Demand Registration"24) providing hours after notice in writing to such 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) such 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 registrations of all Registrable Shares as such Holder Company shall have demanded be registered. The Company may satisfy its obligation use commercially reasonable best efforts to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 register under the Securities Act, for public sale in accordance with the method of disposition specified in such notice from such Purchaser, the number of shares of Registrable Securities specified in such notice. All requests made If such method of disposition shall be an underwritten public offering, such Purchaser may designate the managing underwriter or co-managing underwriter of such offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed. Each Purchaser shall have two (2) demand registrations pursuant to this Section 3.01 9.1(a); provided, however, that the Company shall not be obligated to effect more than one such registration in any one hundred eighty (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration 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 such 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.
(biii) Anything in From and after the date hereof, the Company shall use its commercially reasonable best efforts to qualify under the provisions of the 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 Agreement 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 the contrary notwithstandingqualify, the Company shall be entitled required to postpone and delay effect demand registrations pursuant to this Section 9.1(a) on Form S-1 or any successor thereto to the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) same extent as the Company is conducting or about would be required to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or effect demand registrations on Form S-3.
(iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful Notwithstanding anything to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holdercontrary contained in this Agreement, the Company shall effect be entitled, by providing written notice to any Purchaser, to require such Purchaser to suspend the filing use of the relevant Demand Prospectus for sales of Registrable Securities under the Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request Statement for a Demand Registration by a Holder reasonable period of time not to exceed one hundred twenty (120) consecutive days or within 180 one hundred eighty (180) days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of aggregate in any 12-month period (a “Suspension Period”) if the Board of Directors of the Company be contrary (or the executive committee thereof) determines 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 the time of receipt of such notice such Purchaser shall have sold Registrable Securities (or have signed a firm commitment underwriting agreement with respect to applicable rules or law;
(vthe purchase of such shares) and the reason for the Suspension Period is not of a nature that would require a post-effective amendment to the Registration Statement, then the Company shall not be required use its commercially reasonable best efforts to file a registration statement if take such action as to eliminate any restriction imposed by federal securities Laws on the filing timely delivery of such registration statementshares. Immediately upon receipt of such notice, or such Purchaser shall discontinue the transactions contemplated by disposition of Registrable Securities under such flingRegistration 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 such Purchaser of such termination. After the expiration of any Suspension Period and without any further request from such Purchaser, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required as promptly as reasonably practicable prepare a post-effective amendment or supplement to file a registration statement if the filing of such registration statementRegistration 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 transactions contemplated by such filingRegistrable Securities included therein, would 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 good faith judgment light of the Board 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 Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that days equal to the total number of days during which the distribution of Registrable Shames Securities is suspended under this Section 9.1(a)(iv). If the Company notifies any Purchaser of a Suspension Period with respect to a Registration Statement requested pursuant to Section 9.1(a) that the Holders intend to include is such as has not yet been declared effective, (i) would materially such Purchaser may by notice to the Company withdraw such request without such request counting as one of such Purchaser’s demand requests under Section 9.1(a)(ii) and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number such Purchaser will be not obligated to reimburse the Company for any of Ordinary Shares being offered than the market could reasonably absorbits out-of-pocket expenses, then the number of Registrable Shares to be registered in the Demand including Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of themExpenses.
(ev) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; providedRegistration Statement referred to in this Section 9.1(a), howeverfor sale in accordance with the method of disposition specified by such Purchaser, that if shares of Common Stock to be sold by the lead underwriter of an offering involving a Demand Registration advises Company for its own account (to the Holders that have requested such registration extent that the number inclusion of Ordinary Shares that such shares by the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and shall not adversely affect the price offering), and shall not, without the prior consent of the Ordinary Shares such Purchaser, be entitled to be offered or (ii) result include shares held by any persons other than such Purchaser and its Affiliates. The Registrable Securities of such Purchaser shall have priority for inclusion in a greater number any firm commitment underwritten offering, ahead of Ordinary Shares being offered than the market could reasonably absorball Registrable Securities held by other holders included in such offering, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationin any Underwriter Cutback.
Appears in 3 contracts
Sources: Investment Agreement, Investment Agreement (Liberty Broadband Corp), Investment Agreement (Liberty Broadband Corp)
Demand Registrations. (a) Each Holder At any time after the 180 day period following the effective date of a Registration Statement (as defined below) filed in connection with the LLC’s initial public offering of its equity securities, the holders of at least twenty percent (20%) of Registrable Shares (the “Requesting Holders”) may request, in writing, on up to two (2) separate occasions, that the LLC effect a registration on Form S-1 (or any successor form) of Registrable Shares (as defined below) owned by one or more Investors. If the Requesting Holders intend to distribute the Registrable Shares by means of an underwriting, they shall so advise the LLC in their request. In the event such registration is underwritten, the right of other Investors to participate in such registration shall be conditioned on such Investors’ participation in such underwriting. Upon receipt of any such request from the Requesting Holders, the LLC shall promptly give written notice of such proposed registration to all other Investors. Such other Investors shall have the right right, by giving written notice to the LLC within thirty (30) days after the "Demand Right") during LLC provides its notice, to elect to have included in such registration such of their Registrable Shares as such Investors may request in such notice of election. All Investors proposing to distribute their Registrable Shares through such underwriting shall enter into an underwriting agreement in customary form with an underwriter or underwriters that is mutually agreeable to the term of this Agreement to require LLC and the Company to file Investors holding a registration statement under the Securities Act in respect of all or some majority-in-interest of the Registrable Shares held that the Members requested for inclusion in such registration. The LLC shall, at its own expense and as expeditiously as possible, and in any event within ninety (90) days after the date such request is given by such Holder the Requesting Holders, file a Form S-1 (but not less than or any successor form) for all Registrable Shares that the LLC has been requested to so register. If the underwriter advises the LLC or the holders of Registrable Shares requesting registration hereunder that, in its good faith view, marketing factors require a limitation of the number of Shares to be underwritten, then the Requesting Holders shall so advise all holders of Registrable Shares that otherwise would be underwritten pursuant hereto, and the number of Registrable Shares that represents at least 2.65% may be included in the underwriting shall be allocated among such holders of Registrable Shares, including the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection Requesting Holders, in proportion (b) below, as promptly nearly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register ) to the number of Registrable Shares specified owned by each holder or in such requestother proportion as shall mutually be agreed to by all such selling holders; provided, however, that the Company shall file with number of Registrable Shares held by the Commission and thereafter use its best efforts to cause holders to be declare effective promptly included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. For purposes of this Section 14.01(a), a registration statement shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions this Section 14.01(a), fewer than fifty percent (a "Demand Registration"50%) providing for the registrations of all Registrable Shares as that the Requesting Holders have requested to be included in such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringare actually included.
(b) Anything At any time after the LLC becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings, hereinafter, “Form S-3”), the Investors will have the right to require the LLC to effect Registration Statements on Form S-3 of Registrable Shares having a minimum gross proceeds in this Agreement each registration on Form S-3 of at least $2,500,000. Upon receipt of any such request, the LLC shall promptly give written notice of such proposed registration to all other Investors. Such other Investors shall have the right, by giving written notice to the contrary notwithstandingLLC within thirty (30) days after the LLC provides its notice, to elect to have included in such registration such of their Registrable Shares as such Investors may request in such notice of election. Thereupon, the Company shall be entitled LLC shall, as expeditiously as possible, and in any event within forty-five (45) days after the date such initial request is given, file a Form S-3 for all Registrable Shares that the LLC has been requested to postpone and delay so register.
(c) Notwithstanding the filing of any Demand Registration until foregoing obligations, if the earliest practicable time at which such Demand Registration can be reasonably effected if (i) LLC furnishes to the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join Investors requesting a registration pursuant to this Section 3.02 hereof, (ii) 14.01 a certificate signed by the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine LLC’s president stating that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of it would be materially detrimental to the CompanyLLC and its members or stockholders for such registration statement to either become effective or remain effective for as long as such registration statement would otherwise be required to remain effective, impede, delay or otherwise because such action would (i) materially interfere with any pending or contemplated financing, a significant acquisition, corporate reorganization reorganization, or other similar transaction involving the Company, LLC; (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (zii) require premature disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to that the interests of the Company and its shareholders. After the expiration of any such postponement LLC has a bona fide business purpose for preserving as confidential; or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during render the pendency of any lock-up period imposed in connection LLC unable to comply with a public offering of securities of requirements under the CompanySecurities Act or Exchange Act, except then the LLC shall have the right to defer taking action with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required respect to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than ninety (90) days after the good faith judgment request of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include Investors is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registrationgiven; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration LLC may not invoke this right more than once in any twelve (12) month period; and provided further that the number LLC shall not register any securities for its own account or that of Ordinary Shares that the Company intends to include in addition any other stockholder during such 90-day period other than (A) a registration relating to the total number sale of Registrable Shares that the Holders intend securities to include is such as (1) would materially and adversely affect the price employees of the Ordinary Shares LLC or a subsidiary pursuant to a stock option, stock purchase, or similar plan; (B) a registration relating to a Securities and Exchange Commission (or such other federal agency at the time administering the Securities Act, the “Commission”) Rule 145 transaction; (C) a registration on any form that does not include substantially the same information as would be required to be offered included in a registration statement covering the sale of the Registrable Shares; or (iiD) result a registration in a greater number of Ordinary which the only Common Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary registered are Common Shares shall be excluded from such Demand Registrationissuable upon conversion of debt securities that are also being registered.
Appears in 3 contracts
Sources: Operating Agreement (Arvinas Holding Company, LLC), Operating Agreement (Arvinas Holding Company, LLC), Operating Agreement (Arvinas Holding Company, LLC)
Demand Registrations. (a) Each Holder shall have the right (i) Gotham may, on its own behalf and on behalf of its Controlled Affiliates (the "Demand RightGOTHAM DEMAND RIGHT"), at any time after the date hereof and on an unlimited number of occasions but not more frequently than once during any nine-month period, and (ii) separately, subject to Section 5.3, any Loan Bank may, on its own behalf (the "BANK DEMAND RIGHT"), at any time following the foreclosure of a pledge collateralized by a Founder's Corporation Interests and consequential Transfer of Common Stock to the Loan Bank, on not more than three (3) separate occasions in the aggregate and not more frequently than once during the term of this Agreement to any nine-month period, require the Company Corporation to file a registration statement under the Securities Act in respect of all or some a portion of the Registrable Shares Common Stock then held by such Holder Gotham and its Controlled Affiliates or the Loan Bank, as the case may be (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company"REGISTRABLE SHARES"). Subject , by delivering to the provisions of subsection (b) belowCorporation written notice stating that such right is being exercised, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register specifying the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations shares of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares Common Stock to be included in such registration (the shares subject to such request, the "DEMAND SHARES") and describing the intended method of distribution thereof, which may include an underwritten offering (a "DEMAND REQUEST"). With respect to any Demand Request or any registration of Demand Shares on account thereof, the Corporation may condition its compliance with its obligations hereunder on Gotham's and its Controlled Affiliates' or the Loan Bank's, as the case may be, agreeing in writing to keep confidential all matters related hereto. Upon receiving a Demand Request, the Corporation shall (i) use reasonable best efforts to file as promptly as reasonably practicable a registration statement on such form as the Corporation, in its sole discretion, may reasonably deem appropriate (provided that the Corporation shall not be allocated pro rata among all requesting Holders obligated to register any securities on a "shelf" registration statement or otherwise to register securities for offer or sale on a continuous or delayed basis), providing for the basis registration of the relative number sale of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary such Demand Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition pursuant to the total number intended method of Registrable Shares that the Holders intend to include is such as distribution (1a "DEMAND REGISTRATION") would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number after the filing of Ordinary Shares being offered than an initial version of the market could reasonably absorbregistration statement, then use reasonable best efforts to cause such registration statement to be declared effective under the Holders will promptly, so advise Securities Act as promptly as practicable after the Company and may require, by written notice to the Company accompanying date of filing of such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationregistration statement.
Appears in 3 contracts
Sources: Equityholders Agreement (Gotham Golf Corp), Equityholders Agreement (Gotham Golf Corp), Equityholders Agreement (Gotham Golf Corp)
Demand Registrations. (a) Each Holder shall have Upon written notice by the right (the "Demand Right") during the term of this Agreement Trustee to require the Company at any time and from time to file a time after the date hereof requesting that the Company effect the registration statement under the Securities Act in respect of 1933 (the "Securities Act") of any or all or some of the Registrable Shares securities of the Company now or hereafter held by the Trust (or such Holder shares or other securities into which or for which such securities are changed, converted or exchanged upon any reclassification, share combination, share subdivision, share dividend, share exchange, merger, consolidation or similar transaction or event, together with such shares or other securities received through dividends, reinvestment of dividends or otherwise) (but not less than a number the "Registrable Securities"), which notice shall specify the intended method(s) of disposition of such Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such requestSecurities, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause effect the registration under the Securities Act and applicable state securities laws of such Registrable Securities for disposition in accordance with such intended method(s) of disposition.
(b) Notwithstanding any other provision of this Agreement to the contrary, a registration requested by the Trustee shall not be deemed to have been effected: (i) unless it has become effective, (ii) if after it has become effective such registration is interfered with by any stop order, injunction or other order or requirement of the Securities and Exchange Commission ("SEC") or other governmental agency or court for any reason other than a misrepresentation or an omission by the Trustee and, as a result thereof, the Registrable Securities requested to be registered cannot be completely distributed in accordance with the plan of distribution set forth in the registration statement or (iii) if the conditions to closing specified in any purchase agreement or underwriting agreement entered into in connection with any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to registration are not satisfied or waived other than by reason of some act or omission by the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand RegistrationTrustee.
(c) Notwithstanding anything contained in In the event that any registration pursuant to this Section 3.01:
(i) shall involve, in whole or in part, an underwritten offering, the Company Trustee shall not be required have the right to file a registration statement within 180 days designate an underwriter or underwriters as the lead or managing underwriters of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed such underwritten offering and, in connection with a public offering of securities of each registration, the Company, except with Trustee may select counsel to represent the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto)Trustee.
(d) Notwithstanding anything contained in this Section 3.01As to any particular Registrable Securities, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend Securities shall cease to include is such as be Registrable Securities when (i) would materially a registration statement with respect to the sale by the Trust shall have been declared effective under the Securities Act and adversely affect the price such securities shall have been disposed of the Ordinary Shares to be offered or in accordance with such registration statement, (ii) result such securities shall have been distributed to the public in a greater number of Ordinary Shares being offered than accordance with Rule 144 promulgated under the market could reasonably absorbSecurities Act ("Rule 144"), then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (iiiii) resulting in such securities shall have been otherwise transferred, new certificates for them not bearing a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration legend restricting further transfer shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered have been delivered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to subsequent disposition of them shall not require registration or qualification of them under the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand RegistrationSecurities Act or any state securities or blue sky law then in effect.
Appears in 3 contracts
Sources: Registration Rights Agreement (Tenneco Inc /De), Registration Rights Agreement (Tenneco Packaging Inc), Registration Rights Agreement (Pactiv Corp)
Demand Registrations. (a) Each Holder Subject to Sections 5.1(c) and (e), 5.2 and 5.4, at any time and from time to time during the Registration Period, the Shareholder shall have the right by delivering a written notice to the Company (the "a “Demand Right"Notice”) during the term of this Agreement to require the Company to, pursuant to file a registration statement the terms of this Agreement, use its reasonable best efforts to register under and in accordance with the provisions of the Securities Act in respect of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at Securities Beneficially Owned by the Shareholder Group and requested by such Demand Notice to be so registered (a “Demand Registration”) having a market value of least 2.65% $100,000,000.00 in the aggregate as of the then outstanding Ordinary Shares trading day immediately prior to the date of delivery of a Demand Notice. A Demand Notice shall also specify the expected method or methods of disposition of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of applicable Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringSecurities.
(b) Anything in this Agreement to the contrary notwithstandingFollowing receipt of a Demand Notice, the Company shall be entitled use its reasonable best efforts to postpone file, as promptly as reasonably practicable, 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 by the Shareholder and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting then eligible to use such a registration and if there is no then-currently effective shelf registration statement on file with the SEC that would cover all the Registrable Securities requested to be registered) (or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to amend an existing contractual obligation not Registration Statement if there is a then-effective shelf registration statement on file with the SEC that would cover all the Registrable Securities requested to engage in a public offering, (iiibe registered) relating to the financial statements offer and sale of the Company for Registrable Securities requested to be included therein by the fiscal period most recently ended prior to such written request are not yet available, or (iv) Shareholder and the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its reasonable best efforts to cause any such Demand Registration Statement to be declared effective under the Securities Act as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registrationthereof; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company shall furnish or otherwise make available to the Shareholder, its counsel and the managing underwriter(s), if any, copies of all such documents proposed to be filed (including all exhibits thereto) with the lead underwriter SEC reasonably in advance of an offering involving any filing to permit a reasonable opportunity for the Shareholder, its counsel and the managing underwriter(s) to review and comment in light of the circumstances, and the Company shall in good faith consider any such comments.
(c) The Shareholder Group shall collectively be entitled to request no more than four (4) Demand Registrations from the Company; provided that in no event shall the Company be required to effect more than two (2) Demand Registrations in any eighteen (18)-month period.
(d) At any time that a Demand Registration advises involves an Underwritten Offering, the Selling Holders holding a majority of the Registrable Securities subject to such Demand Registration and the Company shall jointly select nationally recognized and top tier investment banker(s) and/or manager(s) that have requested will serve as managing underwriter(s) (and the Company shall select which such managing underwriters will serve as lead or co-lead) and other underwriter(s) with respect to the offering of such Registrable Securities.
(e) Notwithstanding anything to the contrary contained herein, the Company shall not be obligated to effect, or be obligated to take any action to effect, any registration of Registrable Securities upon receipt of a Demand Notice pursuant to this Section 5.1 for a period of up to one hundred and twenty (120) days after the effective date of a Company-initiated registration (other than: (i) a registration relating to the sale of securities to employees of the Company or a subsidiary pursuant to a stock option, stock purchase, or similar plan; (ii) a registration on any form that does not include substantially the number same information as would be required to be included in a registration statement covering the sale of Ordinary Shares the Registrable Securities; or (iii) a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered); provided that the Company intends is actively employing in good faith its reasonable best efforts to include in addition cause such registration statement to the total number of Registrable Shares become effective; and provided further that the Holders intend to include is such as Company may not invoke this right more than twice in any eighteen (118) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationmonth period.
Appears in 2 contracts
Sources: Shareholder Agreement (Corning Inc /Ny), Shareholder Agreement (Corning Inc /Ny)
Demand Registrations. (a) Each Holder Investors holding in the aggregate at least a majority of the shares of Preferred Stock then outstanding may, at any time, request, in writing, that the Company file a Registration Statement on Form S-3 (or any successor form) to effect the registration of an offering of Registrable Shares owned by such Investor(s) and having an aggregate value of at least $5,000,000, based on the last reported sale price of the Common Stock on the trading day immediately preceding the date of such request (the “Registration Threshold Amount”); provided, however, that, if at the time of such request the Company is not eligible to register for resale the Registrable Shares on Form S-3, the Company shall register the Registrable Shares on such other form as the Company is eligible to use. The Company shall set forth in such Form S-3 any information that may be required in a registration that is filed on Form S-1 and that the lead underwriter managing the offering reasonably requests be expressly included in the Registration Statement.
(b) Upon receipt of any request for registration pursuant to this Section 2, the Company shall promptly (but in any event within 10 days) give written notice of such proposed registration to all other Investors. Such other Investors shall have the right (the "Demand Right") during the term of this Agreement right, by giving written notice to require the Company within 20 days after the Company provides its notice, to file a elect to have included in such registration statement under such of their Registrable Shares as such Investors may request in such notice of election, subject in the Securities Act in respect case of an underwritten offering to the terms of Section 2.1(c). Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration on an appropriate registration form of all or some of Registrable Shares that the Company has been requested to so register.
(c) If the Registration Initiating Investors intend to distribute the Registrable Shares held 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) and the Company shall include such Holder information in its written notice referred to in Section 2.1(b). In such event, (but not less than a number i) the right of any other Investor to include its Registrable Shares in such registration pursuant to Section 2.1(a) shall be conditioned upon such other Investor’s participation in such underwriting on the terms set forth herein, and (ii) all Investors including Registrable Shares in such registration shall enter into an underwriting agreement upon customary terms with the underwriter or underwriters managing the offering; provided that represents at least 2.65% such underwriting agreement shall not provide for indemnification or contribution obligations on the part of the then outstanding Ordinary Shares Investors materially greater than the obligations of the Company)Investors pursuant to Section 2.6. Subject If the Company and the Registration Initiating Investors are unable to mutually agree on the provisions of subsection (bmanaging underwriter(s) below, as promptly as practicable, but in no event later than 45 for any underwritten offering pursuant to Section 2.1(a) within 15 days after the Company receives the Registration Initiating Investors’ request, the Company shall select an underwriter out of a pool of three underwriting firms chosen by the Registration Initiating Investors, each of which firms shall have a national reputation and shall have prior experience with software companies. If any Investor that has requested inclusion of its Registrable Shares in such registration as provided above disapproves of the terms of the underwriting, such Person may elect, by written request notice to the Company, to withdraw its Registrable Shares from such Holder demanding that Registration Statement and underwriting; provided, however, that, if Registration Selling Investors holding a majority of the remaining Registrable Shares mutually agree, the Company so register shall continue to effect the registration of such remaining Registrable Shares regardless of whether the aggregate value of the remaining Registrable Shares is less than the Registration Threshold Amount, in which case the registration, once effective, shall be counted as a registration for the purposes of Section 2.1(d). If the lead managing underwriter advises the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Shares specified to be included in the Registration Statement and underwriting shall be allocated first among Investors holding the Series B Registrable Shares, in proportion, as nearly as practicable, to the respective number of Series B Registrable Shares each Investor has requested be included in such request, registration. In the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of event all Series B Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorbbeen included, then the number of Registrable Shares to be registered included in the Demand Registration Statement and underwriting shall be reduced to such number whichallocated second among Investors holding the Series A Registrable Shares, in proportion, as nearly as practicable, to the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater respective number of Ordinary Series A Registrable Shares being registered than each Investor has requested be included in such registration. In the market could absorb. Such event all Series A Registrable Shares have been included, then the number of remaining Registrable Shares to be included in such registration the Registration Statement and underwriting shall be allocated pro rata finally among all requesting Holders on the basis Investors holding of the relative remaining Registrable Shares, in proportion, as nearly as practicable, to the respective number of securities originally Registrable Shares each Investor has requested be included in such registration.
(d) The Company shall not be required to effect more than a total of three (3) registrations requested pursuant to Section 2.1(a). The Investors shall not deliver a notice pursuant to Section 2.1(a) requesting registration of any underwritten offering until at least 6 months after the closing of any prior underwritten offering registered pursuant to a request under Section 2.1(a). For purposes of this Section 2.1(d), a Registration Statement shall not be registered counted until such time as such Registration Statement has been declared effective by each the Commission. Notwithstanding the foregoing, any request for registration that is withdrawn by the Registration Initiating Investors primarily as a result of themmaterial adverse information concerning the business or financial condition of the Company, where such information is made known to the Registration Initiating Investors after the date on which such registration statement was filed, shall not count as a Registration Statement.
(e) The Company shall be entitled If, at the time of any request to include newly issued Ordinary register Registrable Shares in any Demand Registration; providedby Registration Initiating Investors pursuant to this Section 2.1, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that would require Adverse Disclosure, or the Company intends is engaged or has plans to include engage in addition to a registered public offering or is engaged in a material proposed merger, acquisition, disposition, financing, reorganization, recapitalization or similar transaction that, in the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price good faith determination of the Ordinary Shares to Board of Directors, could be offered or (ii) result in a greater number of Ordinary Shares being offered than adversely affected by the market could reasonably absorbrequested registration, then the Holders will promptlyCompany may at its option direct that such request be delayed for a period not in excess of 90 days from the date of such request, so advise such right to delay a request to be exercised by the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationnot more than once in any 12-month period.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Mti Technology Corp), Investor Rights Agreement (Mti Technology Corp)
Demand Registrations. (a) Each Holder At any time following the Effective Time, to and including the date on which the Stockholder shall have received a written opinion of legal counsel reasonably satisfactory to the Stockholder and the Company and addressed to the Company and the Stockholder stating that the Stockholder Company Shares may be publicly offered for sale in the United States by the Stockholder without restriction as to manner of sale and amount of securities sold and without registration under the Securities Act (such period, the "DEMAND PERIOD"), the Stockholder shall have the right (the "Demand Right") during the term of this Agreement on two occasions to require the Company to file a registration statement under the Securities Act in respect of all or some a portion of the Registrable Stockholder Company Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company)it. Subject to the provisions of subsection (b) below, as As promptly as practicable, but in no event later than 45 60 days after the Company receives a written request from such Holder the Stockholder demanding that the Company so register the number of Registrable Stockholder Company Shares specified in such request, which number shall not be less than the Minimum Number, the Company shall file with the Commission and thereafter use its reasonable best efforts to cause to be declare declared effective promptly a registration statement (a "Demand RegistrationDEMAND REGISTRATION") providing for the registrations registration of all Registrable such number of Stockholder Company Shares as such Holder the Stockholder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall not be required to file or otherwise effect any Demand Registration during the period between the 16th day of each of March, June, September and December and 48 hours following public release by the Company (by means of a press release, 10-Q filing or other public announcement) of its earnings for the quarter in which such 16th day occurs. In addition, anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing or effectiveness of a Demand Registration and, following the effectiveness of any Demand Registration until Registration, may suspend the earliest practicable time at which performance of its obligations under Section 3.04 with respect to such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration."SECTION 3.04
Appears in 2 contracts
Sources: Investor Agreement (Veeco Instruments Inc), Investor Agreement (Fei Co)
Demand Registrations. (a) Each Holder shall have At any time and from time to time following the right (date that is *** months after the "Demand Right") during Closing Date, the term of this Agreement to Investors may require the Company EchoStar to file a registration statement under the Securities Act in respect of all or some a portion of the Registrable Shares held Securities by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject delivering to the provisions of subsection (b) belowIssuers written notice stating that such right is being exercised, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register specifying the number of shares of the Registrable Shares specified Securities to be included in such registration (the shares subject to such request, the Company shall file “Demand Shares”) and describing the intended method of distribution thereof, which *** Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission and thereafter subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act. may include an underwritten offering (a “Demand Request”). Upon receiving a Demand Request, subject in all cases to Section 3.4 of this Agreement, EchoStar shall (i) use its best commercially reasonable efforts to file as promptly as reasonably practicable a registration statement on such form as it may reasonably deem appropriate providing for the registration of the sale of such Demand Shares pursuant to the intended method of distribution; provided that, in the case of an initial underwritten offering, the Demand Shares are reasonably expected to have an aggregate market value of at least ***, and in the case of any additional underwritten offering, the Demand Shares are reasonably expected to have an aggregate market value of at least *** (a “Demand Registration”) and (ii) after the filing of an initial version of the registration statement, use its commercially reasonable efforts to cause such registration statement to be declare declared effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify Act as promptly as practicable after the amount date of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringfiling of such registration statement.
(b) Anything in this Agreement to the contrary notwithstanding, the Company EchoStar shall be entitled to postpone and delay delay, for reasonable periods of time, but in no event more than an aggregate of *** (a “Blackout Period”), the filing or effectiveness of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company EchoStar shall determine that any such filing or the offering of any Registrable Shares would (x) Securities would, in the good faith judgment of the Board board of Directors directors of the CompanyEchoStar, impede, delay (i) materially affect in an adverse manner or otherwise materially interfere with any pending bona fide material financing of EchoStar or contemplated financing, acquisition, corporate reorganization or other similar any material transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities under consideration by the Company, EchoStar or (zii) require disclosure of material nonpublic non-public information which, if disclosed at such time, would be materially harmful seriously detrimental to the interests of the Company EchoStar and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registrationstockholders; provided, however, that EchoStar shall give written notice to the Investors of its determination to postpone or delay the filing of any Demand Registration. Upon notice by EchoStar to the Investors of any such determination, the Investors shall keep the fact of any such notice strictly confidential, and during any Blackout Period, promptly halt any offer, sale, trading or Transfer by it of any shares of the Tracking Stock for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by EchoStar) and promptly halt any use, publication, dissemination or distribution of the Demand Registration, each prospectus included therein, and any amendment or supplement thereto by it for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by EchoStar) and, if so directed by EchoStar, will deliver to EchoStar any copies then in its possession of the lead prospectus covering such Registrable Securities.
(c) In connection with any underwritten offering, the managing underwriter of an offering involving a or underwriters for such Demand Registration advises shall be selected by the Holders Investors; provided that have requested such registration that the number of Ordinary Shares that the Company intends managing underwriter shall be a nationally recognized investment banking firm and shall be reasonably acceptable to include in addition to EchoStar.
(d) There shall be no limit on the total number of Registrable Shares Demand Requests that the Holders intend Investors may deliver to include is such as (1) would materially and adversely affect the price EchoStar pursuant to this Section 4.1; provided, however, that in no event shall EchoStar be obligated to prepare, file or cause to become effective more than two Demand Registrations in any 12-month period. *** Certain confidential portions of this exhibit were omitted by means of redacting a portion of the Ordinary Shares text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to be offered or (ii) result in a greater number of Ordinary Shares being offered than request for confidential treatment pursuant to Rule 24b-2 under the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand RegistrationSecurities Exchange Act.
Appears in 2 contracts
Sources: Investor Rights Agreement (EchoStar CORP), Investor Rights Agreement (DISH Network CORP)
Demand Registrations. (a) Each Holder shall have At any time beginning six months after the right closing of a ‘33 Act Offering, the Series A Holders holding in the aggregate at least fifty percent (50%) of the "Demand Right") during the term of this Agreement to require Registrable Shares may request, in writing, that the Company to file a effect the registration statement on Form S-1 (or any successor form), under the Securities Act in respect of all or some of the Registrable Shares held 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 (but not less than 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 represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) belowrequested registration; provided, as promptly as practicablehowever, but that in no event later than 45 days after shall the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement sold by the Series A Holders be reduced to below twenty-five percent (a "Demand Registration"25%) providing for of the registrations total amount of all Registrable Shares as such Holder securities to be included in the registration.
(f) The Initiating Holders shall have demanded be registered. The Company may satisfy its obligation the right to file a Demand Registration through an automatic shelf registration statement on form F-3 within select the meaning of Rule 405 under the Securities Act. All requests made managing underwriter(s) for any underwritten offering requested pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement 2.1, subject to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors approval of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would which approval will not be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registrationunreasonably withheld.
(cg) Notwithstanding anything contained in this The Company shall not be required to effect more than two (2) registrations pursuant to Section 3.01:
(i) 2.1(a); provided, however, that the Company shall not be required to effect the second of such two (2) registrations in the event that (i) the Company is eligible to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder Statement on Form S-3 (or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
any successor form), and (ii) a Holder shall not be entitled the Shareholders have had the opportunity to request a Demand Registration until after twelve months from register all of their Registrable Shares under the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the CompanySecurities Act pursuant to Section 2.2 hereof. In addition, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file 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 Company on Form S-1 (or any successor form) or (ii) during the one hundred and eighty (180) day period commencing with the date of the Company’s initial ‘33 Act Offering. For purposes of this Section 2.1(g), a registration statement if Registration Statement shall not be counted until such time as such Registration Statement has been declared effective by the filing Commission and the related sale is consummated (in the case of such an underwritten offering). There shall be no limitations as to the number of registrations the Series A Holders may request under Section 2.1(b) or (c).
(h) If at the time of any request to register Registrable Shares by Initiating Holders pursuant to this Section 2.1, the Company is engaged or has plans to engage in a registration statementregistered public offering or is engaged in any other activity which, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach determination of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing ’s Board of such registration statement, or the transactions contemplated by such filingDirectors, would in be adversely affected by the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorbregistration, then the number Company may at its option direct that such request be delayed for a period not in excess of Registrable Shares ninety (90) days from the date of such request, such right to delay a request to be registered in exercised by the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered Company not more than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares once in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration12-month period.
Appears in 2 contracts
Sources: Registration Rights Agreement (Across America Real Estate Corp), Registration Rights Agreement (GDBA Investments LLLP)
Demand Registrations. At any time after 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 Company shall use its commercially reasonable efforts to promptly register under the Securities Act any reasonable portion of Registrable Securities held by ▇▇▇▇▇▇▇▇▇ (aincluding, at the election of ▇▇▇▇▇▇▇▇▇, in an underwritten offering) Each Holder and bear all expenses in connection with such 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 this Section 2.2, a “Demand Registration”), and the Company shall provide customary indemnifications in such instances (in a manner consistent with the indemnification provisions of this Section 3) to ▇▇▇▇▇▇▇▇▇ and any such underwriters. ▇▇▇▇▇▇▇▇▇ shall have the right to initiate up to two (the "2) Demand Right") during the term of this Agreement to require the Company to file a registration statement under the Securities Act in respect of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made Registrations pursuant to this Section 3.01 (a) 2.2. A registration shall specify the amount of the Registrable Shares to be registered. The not count as a Demand Registration unless and until the registration statement relating thereto has been declared effective by the SEC and not withdrawn; provided that a registration statement relating to a Demand Registration that is withdrawn at the request of ▇▇▇▇▇▇▇▇▇ shall be for count as a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of Demand Registration. If any Demand Registration until requested by ▇▇▇▇▇▇▇▇▇ is in the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct form of an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) ▇▇▇▇▇▇▇▇▇ shall designate the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, underwriter or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration underwriters to be declared effective as promptly as practicable unless utilized in connection such Holder shall haveoffering. Notwithstanding the foregoing, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required obligated to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for effect a Demand Registration by a Holder or within 180 days of if, at the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing time of such a registration statementrequest, or the transactions contemplated by all such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition Securities are eligible for sale to the total number of Registrable Shares that public by ▇▇▇▇▇▇▇▇▇ without registration under Rule 144 under the Holders intend to include is Securities Act, with such as (1) would materially and adversely affect sale not being limited by either the price of the Ordinary Shares to be offered timing or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationvolume restrictions thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Workstream Inc), Merger Agreement (Workstream Inc)
Demand Registrations. 1.1 The Company agrees that, commencing on the date nine (a9) Each Holder shall have months from the right date hereof, upon receiving a written request (the "Demand RightRequest") during from any Holder to register under the term Securities Act of this Agreement to require 1933, as amended (the "Securities Act"), and under the securities laws of a reasonable number of states specified by the Holder in the Request (the "Specified States"), a specified number of shares of Subject Stock (as hereinafter defined), which number may be all or a material part of the Subject Stock then owned by the Holders, the Company shall, as soon thereafter as practicable, file with the Securities and Exchange Commission (the "Commission") on the appropriate form a registration statement, together with any requisite registration statements or applications under the securities laws of the Specified States, covering the number of shares of Subject Stock specified in the Request. The Company, under no circumstances, shall be required to file make more than three effective filings of a registration statement under the Securities Act in respect of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration1; provided, however, that beginning at such time, if ever, as any Holder shall exercise the lead underwriter Options, in whole or in material part, the Company shall be obligated to effect two additional registrations pursuant to this Section 1 following any Holder's delivery of an offering involving a Demand Registration advises Request; provided, further, that the Holders that have requested may not deliver more than one Request in total during any 12-month period. For the purpose of the preceding sentence, Requests delivered at the same time by the Holders together shall be counted as one Request. The Company may, in its sole discretion, include additional issued or unissued shares of Common Stock in such registration statement; provided, that the inclusion of any such shares shall not reduce the number of Ordinary Shares that shares of Subject Stock contained in the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is Request which are covered by such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationregistration statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Merck Kgaa /Fi), Registration Rights Agreement (Pharmaceutical Resources Inc)
Demand Registrations. (a) Each Holder 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 (the "each, a “Demand Right"Notice”) during the term of this Agreement to require the Company to, pursuant to file 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 registration statement “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 in respect of all or some 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 Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the CompanySecurities requested to be included therein pursuant to Section 2.1(a). Subject to the provisions preceding sentence, if any of subsection (bthe Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) below, as promptly as practicable, but of such underwritten offering advise the Holders in no event later than 45 days after the Company receives a written request from such Holder demanding writing that it is their good faith opinion that the Company 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 register 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 Shares specified 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 such requestno 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 file with the Commission and thereafter use its reasonable best efforts to cause to be declare maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after the effective promptly a registration statement (a "Demand Registration") providing for the registrations of date thereof or such shorter period in which all Registrable Shares as Securities included in such Holder shall Registration Statement have demanded be registeredactually been sold. The Company may satisfy its For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares Company to be registered. The Demand maintain the continuous effectiveness of the Short-Form Registration shall be for a firm commitment underwritten public offeringcontemplated by Section 2.1(h) as required by Section 2.1(h).
(be) Anything in this Agreement to the contrary notwithstanding, the 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 delay not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing of any or initial effectiveness of, or suspend the use of, a Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected Statement if (i) the Company is conducting or about delivers to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) Holders’ Representative a certificate signed by both the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements Chief Executive Officer and Chief Financial Officer of the Company for the fiscal period most recently ended prior to such written request are not yet availablecertifying that, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impedesuch registration, delay offering or otherwise use would reasonably be expected to materially adversely affect or materially interfere with any pending bona fide and imminent material financing of the Company or contemplated financingany imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, acquisitionand is not otherwise required to be, corporate reorganization 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 other similar transaction involving 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, (yB) based upon advice from the Company's investment banker or financial advisorRegistration 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), adversely affect any pending or contemplated offering or (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 class stop order, injunction or other order or requirement of securities the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the CompanyHolders to be included in the registration are not so included pursuant to Section 2.1(b), or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(iE) the Company shall conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed satisfied (other than as a result of a request for a Demand Registration material default or breach thereunder by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (iiin accordance with Section 2.8) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering any request for registration pursuant to this Agreement regardless of securities of whether or not such request counts toward the Company, except with the consent of the underwriters controlling the applicable lock-up agreementlimitation set forth above.
(ivh) 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 be required to file later than 30 days, such Short-Form Registration, which shall constitute a “shelf” registration statement if providing for the filing of such registration of, and the sale on a registration statementcontinuous or delayed basis (notwithstanding anything to the contrary in Section 2.1(d)) of, or the transactions contemplated by such filingRegistrable Securities, would in pursuant to Rule 415 under the good faith judgment Securities Act, to permit the distribution of the Board Registrable Securities in accordance with the methods of Directors distribution elected by the Holders, including by means of the Company be contrary to applicable rules or law;
(v) an underwritten offering. Upon filing a Short-Form Registration, the Company shall not 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 required to file a registration statement if the filing of such registration statementre-filed upon its expiration, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) and the Company shall not cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be required reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would contrary in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related theretoSection 2.1(d)).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.
Appears in 2 contracts
Sources: Exchange Agreement (Americredit Corp), Registration Rights Agreement (Americredit Corp)
Demand Registrations. (a) Each Holder shall have Subject to the right last sentence of this Section 2.1(a), if for any reason the Shelf Registration Statement to be prepared and filed by the Company has not been declared effective by the Commission within 120 consecutive days from the date hereof as contemplated by Section 2.3 of this Agreement, Investors holding in the aggregate at least a majority of the shares of Series B Stock then outstanding may, at any time and from time to time, request, in writing, that the Company file a Registration Statement on Form S-3 (or any successor form) to effect the registration of an offering of Registrable Shares owned by such Investor(s) and having an aggregate value of at least $5,000,000 based on the last reported sale price of the Common Stock on the trading day immediately preceding the date of such request (the "Demand Right") during “Registration Threshold Amount”); provided, however, that, if at the term time of this Agreement to require such request the Company is not eligible to file a registration statement under the Securities Act in respect of all or some of register for resale the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such requeston Form S-3, the Company shall file with register the Commission Registrable Shares on such other form as the Company is eligible to use. The Company shall set forth in such Form S-3 any information that may be required in a registration that is filed on Form S-1 and thereafter that the lead underwriter managing the offering reasonably requests (as determined by the Company) be expressly included in the Registration Statement. Notwithstanding the foregoing, in the event that the Shelf Registration Statement has not become effective by the expiration of such 120 consecutive day period as a result of an ongoing review by the Commission, the Company shall not be deemed to be in breach of its obligations under this Section 2.1(a) so long as it continues to diligently pursue and use its best efforts to cause the Shelf Registration Statement to be declare become effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringsoon as possible thereafter.
(b) Anything in Upon receipt of any request for registration pursuant to this Agreement to the contrary notwithstandingSection 2 of this Agreement, the Company shall be entitled promptly (but in any event within ten (10) consecutive days of receipt of such request) give written notice of such proposed registration to postpone and delay all other Investors. Such other Investors shall have the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) right, by giving written notice to the Company is conducting or about within twenty (20) consecutive days after the Company provides its notice, to conduct elect to have included in such registration such of their Registrable Shares as such Investors may request in such notice of election, subject in the case of an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests terms of the Company and its shareholdersSection 2.1(c) of this Agreement. After the expiration of any such postponement or delay and without any further request from a HolderThereupon, the Company shall effect the filing of the relevant Demand Registration and shall shall, as expeditiously as possible, use its best efforts to cause any such Demand Registration effect the registration on an appropriate registration form of all Registrable Shares that the Company has been requested to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registrationso register.
(c) Notwithstanding anything contained If the Registration Initiating Investors 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) of this Agreement and the Company shall include such information in its written notice referred to in Section 2.1(b) of this Section 3.01:
Agreement. In such event, (i) the Company right of any other Investor to include its Registrable Shares in such registration pursuant to Section 2.1(a) of this Agreement shall not be required to file a registration statement within 180 days of conditioned upon such other Investor’s participation in such underwriting on the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
terms set forth herein, and (ii) a Holder all Investors including Registrable Shares in such registration shall enter into an underwriting agreement upon customary terms with the underwriter or underwriters managing the offering; provided that such underwriting agreement shall not be entitled provide for indemnification or contribution obligations on the part of the Investors materially greater than the obligations of the Investors pursuant to request Section 2.6 of this Agreement. If the Company and the Registration Initiating Investors are unable to mutually agree on the managing underwriter(s) for any underwritten offering pursuant to Section 2.1(a) of this Agreement within 15 consecutive days after the Company receives the Registration Initiating Investors’ request, the Company shall select an underwriter out of a Demand pool of three underwriting firms chosen by the Registration until after twelve months from Initiating Investors, each of which firms shall have a national reputation and experience with software companies. If any Investor that has requested inclusion of its Registrable Shares in such registration as provided above disapproves of the Effective Date,
(iii) no request for a Demand Registration terms of the underwriting, such Person may be made elect, by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of written notice to the Company, except with the consent to withdraw its Registrable Shares from such Registration Statement and underwriting; provided, however, that, if Registration Selling Investors holding a majority of the underwriters controlling the applicable lock-up agreement
(iv) remaining Registrable Shares mutually agree, the Company shall not be required continue to file a effect the registration statement if the filing of such a registration statement, or remaining Registrable Shares regardless of whether the transactions contemplated by such filing, would in the good faith judgment aggregate value of the Board of Directors of remaining Registrable Shares is less than the Registration Threshold Amount. If the lead managing underwriter advises the Company be contrary to applicable rules or law;
(v) in writing that marketing factors require a limitation on the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorbunderwritten, then the number of Registrable Shares to be registered included in the Demand Registration Statement and underwriting shall be reduced allocated among all Investors requesting registration in proportion, as nearly as practicable, to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater respective number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to each Investor has requested be included in such registration.
(d) The Company shall not be required to effect more than a total of three (3) registrations requested pursuant to Section 2.1(a) of this Agreement (an offering which is not consummated shall not be counted for this purpose). The Investors shall not deliver a notice pursuant to Section 2.1(a) of this Agreement requesting registration of any underwritten offering until at least 6 months after the closing of any prior underwritten offering registered pursuant to a request under Section 2.1(a) of this Agreement. For purposes of this Section 2.1(d), a Registration Statement shall not be allocated pro rata among all requesting Holders on counted until such time as such Registration Statement has been declared effective by the basis Commission. Notwithstanding the foregoing, the first, and only the first, time any request for registration that is withdrawn by the Registration Initiating Investors (other than at the request of the relative number Company) and that is primarily as a result of securities originally requested material adverse information concerning the business or financial condition of the Company, where such information is made known to be registered the Registration Initiating Investors after the date on which such registration statement was filed, shall not count as a Registration Statement. Except as set forth in the previous sentence, all Registration Statements withdrawn by each the Investors shall count as a Registration Statement; provided however, that a Registration Statement that is withdrawn by the Investors at the request of themthe Company shall not count as a Registration Statement for purposes of this Section 2.1.
(e) The Company shall be entitled If at the time of any request to include newly issued Ordinary register Registrable Shares in any Demand Registration; providedby Registration Initiating Investors pursuant to this Section 2.1, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends is engaged or has plans to include engage in addition to a registered public offering or is engaged in a material proposed acquisition, disposition, financing, reorganization, recapitalization or similar transaction that, in the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price good faith determination of the Ordinary Shares to Board of Directors, could be offered or (ii) result in a greater number of Ordinary Shares being offered than adversely affected by the market could reasonably absorbrequested registration, then the Holders will promptlyCompany may at its option direct that such request be delayed for a period not in excess of 45 consecutive days from the date of such request, so advise such right to delay a request to be exercised by the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationnot more than once in any 12-month period.
Appears in 2 contracts
Sources: Investor Rights Agreement (Evolving Systems Inc), Investor Rights Agreement (Evolving Systems Inc)
Demand Registrations. (a) Each 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 qualitative listing requirements, the 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 (the "Demand Right") during the term of this Agreement to require demand that the Company satisfy its obligations pursuant to file a this Section 3 by use of the SEC's Form S-8, or any successor form thereto, subject to applicable law, or such other SEC registration statement under 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 Securities Act Company in respect of writing that it intends to offer or cause to be offered for public sale all or some any portion of the Registrable Shares held by such Holder Shares, and within ten (but not less than a number of Registrable Shares that represents at least 2.65% 10) days of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection receipt after such notice.
(b) below, as promptly as practicable, but in no event later than 45 days after Upon written request of Holder the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter will use its best efforts to cause all or any part of the Registrable Securities that may be requested by Holder to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 registered under the Securities Act. All requests made Act as expeditiously as possible.
(c) If Holder intends to distribute the Registrable Securities covered by its request by means of an underwriting, it shall so advise the Company as part of its request.
(d) Notwithstanding the foregoing, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.01 3: (ai) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, if the Company shall be entitled furnish to postpone and delay Holder a certificate signed by the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements President of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine stating that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving it would be seriously detrimental to the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed Company and its stockholders for such registration statement to be effected at such time, would be materially harmful and that it is essential to the interests of Company to defer the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holderfiling, in which event the Company shall effect have the right to defer the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such 3 registration statement for a period of not more than 120 days after receipt of the request of the Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in under this Section 3.01:
(i) 3; provided, however that the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of utilize this right more than once in any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license12 month period; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result during the period starting with the date 60 days prior to the Company's good faith estimate of filing of, and ending on a date 180 days after the effective date of, a registration statement filed under the Securities Act (other than a registration relating solely to the sale of securities to participants in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of themCompany stock plan).
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.
Appears in 2 contracts
Sources: Consulting Agreement (Vital Living Inc), Consulting Agreement (Vital Living Inc)
Demand Registrations. (a) Each Holder If, following the date hereof, the Company is unable to file, cause to be effective or maintain the effectiveness of a Shelf Registration Statement as required under Section 2.1, the Holders' Representative shall have the right by delivering a written notice to the Company (the a "Demand RightNotice") during the term of this Agreement to require the Company to, pursuant to file a registration statement the terms of this Agreement, register under and in accordance with the provisions of the Securities Act in respect of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in Securities Beneficially Owned by any Holders and requested by such request, the Company shall file with the Commission and thereafter use its best efforts to cause Demand Notice to be declare effective promptly a registration statement so registered (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file ); provided, however, that if a Demand Notice is made in respect of a number of Registrable Securities that is less than all of the Registrable Securities Beneficially Owned by any Holders, then the sale of the Registrable Securities requested to be registered by the Holders' Representative must be reasonably expected to result in aggregate gross cash proceeds in excess of $50,000,000 (without regard to any underwriting discount or commission). 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 45 days after receipt by the Company of such Demand Notice (subject to paragraph (d) of this Section 2.2), a Registration through an automatic shelf registration statement on form F-3 within Statement relating to the meaning offer and sale of Rule 405 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 requests made pursuant to this Section 3.01 (a) shall specify Act as promptly as practicable after the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringfiling thereof.
(b) Anything If any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in this Agreement 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 contrary notwithstandingtotal number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such underwritten offering was requested by the Holders and any Other Securities proposed to be included by the Stockholders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder and any Other Securities Beneficially Owned by each such Stockholder until all such securities have been allocated for inclusion; and
(ii) second, among any other holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder of Other Securities.
(c) In the event of a Demand Registration, the Company shall be required to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least 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.
(d) The Company shall be entitled to postpone and delay (but not more than twice in any 12-month period), for a reasonable period of time not in excess of 90 days, the filing of any or initial effectiveness of, or suspend the use of, a Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected Statement if (i) the Company is conducting or about delivers to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) Holders' Representative a certificate signed by both the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements Chief Executive Officer and Chief Financial Officer of the Company for the fiscal period most recently ended prior to such written request are not yet availablecertifying that, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impedesuch registration, delay offering or otherwise use would reasonably be expected to materially adversely affect or materially interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of bona fide material nonpublic information which, if disclosed at such time, would be materially harmful to the interests financing of the Company or any material transaction under consideration by the Company or would require the disclosure of information that has not been, and its shareholdersis not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company. After Such certificate shall contain a statement of the expiration of any reasons for such postponement or delay suspension and without any further request from a Holder, the Company shall effect the filing an approximation of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of themanticipated delay.
(e) The Holders' Representative shall have the right to notify the Company shall be entitled that it has determined that the Registration Statement relating to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that be abandoned or withdrawn, in which event the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is shall promptly abandon or withdraw such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.Registration Statement
Appears in 2 contracts
Sources: Registration Rights Agreement (Colfax CORP), Registration Rights Agreement (Colfax CORP)
Demand Registrations. (a) Each Holder At any time and from time to time, the Holders’ Representative shall have the right by delivering a written notice to the Company (the "a “Demand Right"Notice”) during the term of this Agreement to require the Company to, pursuant to file 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 registration statement “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 in respect of all or some 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 Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the CompanySecurities requested to be included therein pursuant to Section 2.1(a). Subject to the provisions preceding sentence, if any of subsection (bthe Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) below, as promptly as practicable, but of such underwritten offering advise the Holders in no event later than 45 days after the Company receives a written request from such Holder demanding writing that it is their good faith opinion that the Company 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 register 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 Shares specified 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 such requestno 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 file with the Commission and thereafter use its reasonable best efforts to cause to be declare maintain the continuous effectiveness of the applicable Registration Statement for a period of at least 180 days after the effective promptly a registration statement (a "Demand Registration") providing for the registrations of date thereof or such shorter period in which all Registrable Shares as Securities included in such Holder shall Registration Statement have demanded be registeredactually been sold. The Company may satisfy its For the avoidance of doubt, the foregoing sentence is not intended to limit the obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares Company to be registered. The Demand maintain the continuous effectiveness of the Short-Form Registration shall be for a firm commitment underwritten public offeringcontemplated by Section 2.1(h) as required by Section 2.1(h).
(be) Anything in this Agreement to the contrary notwithstanding, the 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 delay not for periods exceeding, in the aggregate, 90 days during any twelve-month period), the filing of any or initial effectiveness of, or suspend the use of, a Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected Statement if (i) the Company is conducting or about delivers to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) Holders’ Representative a certificate signed by both the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements Chief Executive Officer and Chief Financial Officer of the Company for the fiscal period most recently ended prior to such written request are not yet availablecertifying that, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impedesuch registration, delay offering or otherwise use would reasonably be expected to materially adversely affect or materially interfere with any pending bona fide and imminent material financing of the Company or contemplated financingany imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, acquisitionand is not otherwise required to be, corporate reorganization 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 other similar transaction involving 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, (yB) based upon advice from the Company's investment banker or financial advisorRegistration 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), adversely affect any pending or contemplated offering or (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 class stop order, injunction or other order or requirement of securities the SEC or other Governmental Entity or court, (D) more than 10% of the Registrable Securities requested by the CompanyHolders to be included in the registration are not so included pursuant to Section 2.1(b), or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(iE) the Company shall conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed satisfied (other than as a result of a request for a Demand Registration material default or breach thereunder by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
applicable Holders). Notwithstanding anything to the contrary, the Company will pay all expenses (iiin accordance with Section 2.8) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed 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 qualify for registration on Form S-3 (including, if available, an automatic shelf registration statement for a public offering of securities “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 such Short-Form 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 Company, except Registrable Securities in accordance with the consent methods of distribution elected by the underwriters controlling the applicable lockHolders, including by means of an underwritten offering. Upon filing a Short-up agreement
(iv) Form Registration, the Company shall not 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 required to file a registration statement if the filing of such a registration statementre-filed upon its expiration, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) and the Company shall not cooperate in any shelf take-down by amending or supplementing the Prospectus related to such Short-Form Registration as may be required reasonably requested by the Holders’ Representative or as otherwise required, until the Holders no longer hold Registrable Securities (in each case, notwithstanding anything to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would contrary in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related theretoSection 2.1(d)).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Americredit Corp), Registration Rights Agreement (Leucadia National Corp)
Demand Registrations. (a) Each From time to time and subject to the limitations set forth herein, after the date hereof each Holder shall have the right may request in writing (the "a “Demand Right"Request”) during the term of this Agreement to require that the Company to file a effect the registration statement under the Securities Act in respect or listing of all or some a portion of the Registrable Shares Securities held by such Holder Holder’s Stockholder Group (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company“Demand Registration”). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register Each Demand Request shall specify the number of Registrable Shares specified in such request, the Securities to be registered. The Company shall file with the Commission as expeditiously as reasonably possible a Registration Statement relating to such Demand Registration (a “Demand Registration Statement”) and thereafter shall use its best efforts to cause effect such registration under applicable Law in the form of an Underwritten Offering.
(b) In no event shall the Company be required to be declare effective promptly effect and complete (i) more than three (3) Demand Registrations requested by Kingsland, (ii) more than three (3) Demand Registrations requested by NewCo and (iii) more than three (3) Demand Registrations requested by United (or a United Designee); provided that a request for registration statement (a "Demand Registration") providing will not count for the registrations purposes of all this limitation if (A) prior to the sale of at least 80% of the Registrable Shares Securities included in the registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the Applicable Regulator or other Governmental Authority or court for any reason and the Company fails to have such stop order, injunction or other order or requirement removed, withdrawn or resolved within 30 days of the date of such order or (B) the conditions to closing specified in the underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as such a result of acts or omissions of the Holder shall have demanded be registered. The Company may satisfy its obligation to file making the Demand Request), (iv) more than two (2) Demand Registrations in any twelve (12) month period, or (v) any Demand Registration that would register in the aggregate less than $50.0 million of the capital stock of the Company.
(c) Promptly upon receipt of any request for a Demand Registration through an automatic shelf pursuant to Section 2.1(a) (but in no event more than ten (10) business days thereafter), the Company shall deliver a written notice of any such registration statement request specifying the number of Registrable Securities requested to be registered and the intended method of distribution of the Registrable Securities (a “Demand Notice”) to all other Holders of Registrable Securities, and the Company shall include in such Demand Registration all additional Registrable Securities of other Holders with respect to which the Company has received written requests for inclusion therein within 20 days after the date on form F-3 within which the meaning of Rule 405 under the Securities ActDemand Notice has been delivered. All requests made pursuant to this Section 3.01 (a2.1(c) shall specify the class and aggregate amount of the Registrable Shares Securities to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01If the filing, if the lead underwriter initial effectiveness, publication or continued use of an offering involving a Demand Registration advises Statement at any time would require the Holders Company to make an Adverse Disclosure or to utilize financial statements that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of the independent public accountants of the Company do not comply with applicable Law, the Company may, upon giving prompt written notice of such underwritersaction to the Holders, can be sold without delay the filing, publication or initial effectiveness of, or suspend use of, the Demand Registration Statement (a “Demand Suspension”); provided that in the case of an Adverse Disclosure such Demand Suspensions shall not extend for more than 90 days in any twelve-month period. In the case of a Demand Suspension, the Holders agree to suspend use of the applicable Prospectus in connection with any sale or purchase, or offer to sell or purchase, Registrable Securities, upon receipt of the notice referred to above. The Company shall immediately (i) materially and adversely affecting notify the price Holders upon the termination of the Ordinary Shares to be offered or any Demand Suspension, (ii) resulting in a greater number amend or supplement the Prospectus, if necessary, so it does not contain any untrue statement or omission therein and (iii) furnish to the Holders such numbers of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis copies of the relative number of securities originally requested to be registered by each of themProspectus as so amended or supplemented as the Holders may reasonably request.
(e) The Company shall be entitled have the right to include newly issued Ordinary Shares in select the underwriters to administer any Demand Registration; providedOffering, howeversubject to the approval of the Holder who initiated the offering or submitted the Demand Request (which approval shall not be unreasonably withheld or delayed), that if as applicable.
(f) Notwithstanding any provisions of this Section 2.1 to the lead underwriter contrary, any registration of an offering involving the Registrable Securities of United (or a United Designee) or NewCo, as the case may be, effected in connection with the delivery of Registrable Securities pursuant to Section 2.8 of the NewCo Loan Agreement or Section 2.4(b)(ii)(1) or (2) of the SAR shall not constitute the use a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as by United (1or a United Designee) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand RegistrationNewCo for any purposes hereunder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Avianca Holdings S.A.), Registration Rights Agreement
Demand Registrations. (ai) Each At any time from and after the Closing Date, any Holder shall have the right or Holders (the "Demand RightInitiating Holders") during who own, in the term aggregate, at least a majority of this Agreement the Registrable Securities may elect, by giving written notice thereof to the Company, to require the Company to file use its reasonable best efforts to register all or a registration statement portion of its Registrable Securities under the Securities Act in respect of all or some of the Registrable Shares held by Act. Promptly following such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such requestelection, the Company shall file with (1) give notice (the Commission "Demand Notice") to each other Holder (collectively, the "Other Holders") of Registrable Securities, if any, of such election, which notice shall set forth the identity of the Initiating Holders, and thereafter (2) use its reasonable best efforts to cause to be declare declared or become effective promptly under the Securities Act a registration statement (a "Demand Registration") providing for the registrations registration of, and the sale in accordance with the intended method or methods of all distribution thereof by the electing Holders of, the Registrable Shares as Securities requested to be included therein in writing by the Initiating Holders and by any Other Holders who request the inclusion in such Holder shall have demanded be registeredregistration 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 may satisfy its obligation shall be required to file a Demand Registration through an automatic shelf cause to become effective pursuant to 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 F-3 within the meaning of Rule 405 Form S-3 under the Securities Act, in which case the Holders shall have the unlimited right to require such registrations on Form S-3. All requests made Notwithstanding the foregoing, the Company shall not be obligated to register Registrable Securities on Form S-3 under the Securities Act upon any election pursuant to this Section 3.01 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 (ag) shall specify the amount or 15(d) of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstandingExchange Act, the Company shall be entitled to postpone and delay Holders may not exercise the filing of any Demand Registration demand rights provided for under this Section 2(a)(i) until the earliest practicable time at which such Demand Registration can be reasonably effected if earlier of (i) the date 180 days after the consummation by the Company is conducting or about to conduct of an underwritten public offering of securities in its Common Stock subsequent to the date on which the Holder is entitled Company first ceases to join pursuant be subject to Section 3.02 hereof, such sections of the Exchange Act or (ii) the second anniversary of the date the Company is 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 existing contractual obligation as-converted basis, of at least $50.0 million (before giving effect to the receipt of any proceeds to be received by the Company in such offering).
(ii) In the event of any registration of Registrable Securities pursuant to Section 2(a)(i) hereof, the Company shall 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 engage in a public offeringRule 415 of the Securities Act), except for Other Holders of Registrable Securities as contemplated by Section 2(a)(i) hereof.
(iii) In the financial statements of the Company for the fiscal period most recently ended event that, following any election pursuant to Section 2(a)(i) hereof but prior to the filing of a registration statement in respect of such written request are not yet availableelection, or (ivA) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impedein its reasonable judgment and in good faith, delay or otherwise resolves that the filing of such registration statement and the offering of Registrable Securities pursuant thereto would materially interfere with any pending or contemplated financing, significant acquisition, corporate reorganization reorganization, financing or other similar transaction involving the Company, and (yB) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After gives the expiration Holders having made such election written notice of any such postponement or delay and without any further request from determination (which notice shall include a Holdercopy of such resolution), the Company shall effect shall, notwithstanding the provisions of Section 2(a)(i) hereof, be entitled to postpone for up to 90 days the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration registration statement otherwise required to be declared effective as promptly as practicable unless such Holder shall have, prior prepared and filed by it pursuant to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(cSection 2(a)(i) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registrationhereof; provided, however, that no such postponement may be effected if any other postponement of a registration pursuant to this Section 2 was in effect during the lead underwriter 12 months immediately preceding the commencement of such postponement, unless any Holders having made elections during the previous postponement shall have had the opportunity to register their Registrable Securities pursuant to an offering involving a Demand Registration advises the Holders that have requested such effective registration that the number of Ordinary Shares that the Company intends to include in addition statement prior to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationcurrent postponement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Vie Financial Group Inc), Registration Rights Agreement (Vie Financial Group Inc)
Demand Registrations. (ai) Each Holder shall have Subject to the right (the "Demand Right") during the term terms and conditions of this Agreement to require 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 statement under the Securities Act in respect of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after on Form S-3 and the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such requestis then ASR Eligible, the Company shall file with the Commission and thereafter use its commercially reasonable best efforts to cause the Registration Statement to be declare effective promptly a an ASRS. In the event that any registration statement 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 (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registeredan “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 may satisfy 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 obligation demand requests pursuant to file a Demand 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 through an automatic shelf registration statement on form F-3 within Expenses.
(ii) Following receipt of any notice under this Section 9.1(a), the meaning of Rule 405 Company shall use commercially reasonable best efforts to register under the Securities Act, for public sale in accordance with the method of disposition specified in such notice from the Purchaser, the number of shares of Registrable Securities specified in such notice. All requests made 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 unreasonably withheld or delayed. The Purchaser shall have two (2) demand registrations pursuant to this Section 3.01 9.1(a); provided, however, that the Company shall not be obligated to effect more than one such registration in any one hundred eighty (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration 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.
(biii) Anything in From and after the date hereof, the Company shall use its commercially reasonable best efforts to qualify under the provisions of the 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 Agreement 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 the contrary notwithstandingqualify, the Company shall be entitled required to postpone and delay effect demand registrations pursuant to this Section 9.1(a) on Form S-1 or any successor thereto to the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) same extent as the Company is conducting or about would be required to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or effect demand registrations on Form S-3.
(iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful Notwithstanding anything to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holdercontrary contained in this Agreement, the Company shall effect be entitled, by providing written notice to the filing Purchaser, to require the Purchaser to suspend the use of the relevant Demand Prospectus for sales of Registrable Securities under the Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request Statement for a Demand Registration by a Holder reasonable period of time not to exceed ninety (90) consecutive days or within 180 one hundred twenty (120) days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of aggregate in any 12-month period (a “Suspension Period”) if the Board of Directors of the Company be contrary (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 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 applicable rules or law;
(vthe purchase of such shares) and the reason for the Suspension Period is not of a nature that would require a post-effective amendment to the Registration Statement, then the Company shall not be required use its commercially reasonable best efforts to file a registration statement if take such action as to eliminate any restriction imposed by federal securities Laws on the filing timely delivery of such registration statementshares. Immediately upon receipt of such notice, or the transactions contemplated by Purchaser shall discontinue the disposition of Registrable Securities under such flingRegistration 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, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required as promptly as reasonably practicable prepare a post-effective amendment or supplement to file a registration statement if the filing of such registration statementRegistration 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 transactions contemplated by such filingRegistrable Securities included therein, would 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 good faith judgment light of the Board 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 Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that days equal to the total number of days during which the distribution of Registrable Shames 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 requested pursuant to Section 9.1(a) that the Holders intend to include is such as has not yet been declared effective, (i) would materially and adversely affect the price Purchaser may by notice to the Company withdraw such request without such request counting as one of the Ordinary Shares to be offered or Purchaser’s demand requests under Section 9.1(a)(ii) and (ii) result in a greater number the Purchaser will be not obligated to reimburse the Company for any of Ordinary Shares being offered than the market could reasonably absorbits out-of-pocket expenses, then the number of Registrable Shares to be registered in the Demand including Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of themExpenses.
(ev) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; providedRegistration Statement referred to in this Section 9.1(a), howeverfor sale in accordance with the method of disposition specified by the Purchaser, that if the lead underwriter shares of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that Common Stock to be sold by the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares for its own account or to be offered or sold by any Other Equity Purchaser pursuant to its piggyback registration rights set forth in any Other Investment Agreement (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, thateach case, to the extent necessary to meet that the inclusion of any such limitationshares shall not adversely affect the offering, newly issued Ordinary Shares as determined in the 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 excluded from permitted to include the shares of Common Stock owned by them in any such Demand RegistrationRegistration 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) Each Holder shall have From and after the right expiration of the First Step Restricted Period (subject, in the "Demand Right"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 the term of this Agreement to require any period that the Company is then-ineligible under Applicable Law to file register Registrable Securities on Form S-3 pursuant to Section 5.3 or, if the 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 be entitled to make an unlimited number of written requests of the Company (each, a “Demand”) for registration statement under the Securities Act in respect of all or some an amount of the Registrable Shares Securities then held by such Holder Requesting Shareholders that equals or is greater than the Registrable Amount (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company“Demand Registration”). Subject Thereupon the Company will, subject to the provisions terms of subsection (b) belowthis Agreement, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its reasonable best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective registration as promptly as practicable unless such Holder shall have, prior to under the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01Securities Act of:
(i) the Registrable Securities which the Company shall not be required has been so requested to file a registration statement within 180 days register by the Requesting Shareholders for disposition in accordance with the intended method of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Sharesdisposition stated in such Demand;
(ii) a Holder shall not be entitled all other Registrable Securities which the Company has been requested to request a Demand Registration until after twelve months from the Effective Date,register pursuant to Section 5.1(b), but subject to Section 5.1(g); and
(iii) no all shares of Company Common Stock which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 5.1, but subject to Section 5.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional shares of Company Common Stock, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Shareholder(s). Within ten (10) days after receipt of a Demand, the Company shall 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 which the Company has received a written request for inclusion therein within ten (10) days after the Company’s notice required by this paragraph has been given, subject to Section 5.1(g). Each such written request shall comply with the requirements of a Demand as set forth in this Section 5.1(b).
(c) A Demand Registration shall not be deemed to have been effected and shall not count as a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(ivi) the Company shall not be required to file unless a registration statement if with respect thereto has become effective and has remained effective for a period of at least one hundred eighty (180) days or such shorter period in which all Registrable Securities included in such Demand Registration have actually been sold thereunder (provided, that such period shall be extended for a period of time equal to the filing period the holder of Registrable Securities refrains from selling any securities included in such a registration statement, or statement at the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors request of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by lead managing underwriter(s) pursuant to the provisions of this Agreement) or (ii) if, after it has become effective, such flingDemand Registration becomes subject, would in the good faith judgment prior to one hundred eighty (180) days after effectiveness, to any stop order, injunction or other order or requirement of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing Commission or other debt documents (includingGovernmental Authority, other than by reason of any ancillary documents related thereto)act or omission by the applicable Selling Shareholders.
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested Registrations shall be on such appropriate registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price form of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration Commission as shall be reduced selected by the Company and reasonably acceptable to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of themRequesting Shareholders.
(e) The Company shall not be entitled obligated to include newly issued Ordinary Shares in any (i) subject to Section 5.1(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration; provided, however, that if the lead underwriter of an offering involving for a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as period longer than one hundred eighty (1180) would materially and adversely affect the price of the Ordinary Shares to be offered days or (ii) result effect any Demand Registration (A) within six (6) months of a “firm commitment” Underwritten Offering in a greater 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 Ordinary Shares being offered than Registrable Securities requested by such Demand Shareholders to be included in such Demand Registration were included, (B) within six (6) months of the market could reasonably absorbcompletion of any other Demand Registration (including, then for the Holders will promptlyavoidance of doubt, so advise 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 and may requireto proceed with the Demand Registration because of the unavailability of audited or other required financial statements; provided, by 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 postpone (upon written 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, the Company accompanying such advice, shall 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, in the good faith judgment of the Board, the conditions described in clause (ii) of the definition 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 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 extent necessary number of Registrable Securities requested to meet be included in such limitationDemand Registration by the Demand Shareholders, newly issued Ordinary Shares 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 such other allocation method determined by the Company.
(h) Any time that 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 excluded from reasonably acceptable to the Company (such Demand Registrationacceptance not to be unreasonably withheld, conditioned or delayed).
Appears in 2 contracts
Sources: Shareholder Agreement (Walgreen Co), Purchase and Option Agreement (Walgreen Co)
Demand Registrations. (ai) Each At any time after the date that is 180 days after the consummation by the Company of an initial public offering of its Common Stock pursuant to an effective registration statement under the Securities Act, any Holder or Holders of Registrable Securities shall have the right (to elect, by giving written notice thereof to the "Demand Right") during the term of this Agreement Company, to require the Company to file use its reasonable best efforts to register all or a registration statement portion of such Holder’s Registrable Securities under the Securities Act in respect of all or some of Act; provided, however, that (A) if the Company is not eligible to register the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of Securities on Form S-3 under the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such requestSecurities Act, the Company shall file with be obligated to register the Commission Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities, and thereafter (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000. Promptly following such election, the Company shall (1) give notice to each other Holder of Registrable Securities of such election, which notice shall set forth the identity of the electing Holders, and (2) use its reasonable best efforts to cause to be declare declared or become effective promptly under the Securities Act a registration statement (a "Demand Registration") providing for the registrations registration of, and the sale in accordance with the intended method or methods of all distribution thereof by the electing Holders of, the Registrable Shares as such Holder shall have demanded Securities elected to be registeredincluded therein by the Holder. The Company may satisfy its obligation shall be required to file a Demand Registration through an automatic shelf cause to become effective pursuant to this Section 2(a)(i) no more than three registration statements in the aggregate, and only one registration statement within any period of six months, unless the Company is eligible to register the Registrable Securities on form F-3 within the meaning of Rule 405 Form S-3 under the Securities Act. All requests made , in which case the Holders shall have the unlimited right to require registrations on Form S-3; provided, however, that the Company shall not be obligated to effect any such registration on Form S-3 if within the 12-month period preceding the date of such request for registration the Company already has effected two registrations on Form S-3 (or applicable successor form) at the request of Holders.
(ii) Notwithstanding the foregoing, the Company shall not be obligated to register Registrable Securities upon any election pursuant to this Section 3.01 (a2(a)(i) shall specify if fewer than 135 days have elapsed after the amount effective date of a registration statement registering newly issued or treasury shares of the Registrable Shares to be registered. The Demand Registration shall be Company’s Common Stock for purposes of a primary offering (as defined in Section 2(b)(i) hereof) on a firm commitment underwritten public offeringbasis, but only if and to the extent that (A) the underwriting agreement entered into in connection with any such offering expressly prohibited registration of Registrable Securities and (B) no period referred to in this sentence, and no postponement referred to in Section 2(a)(iii) hereof, was in effect during the 12 months immediately preceding the commencement of such 135-day period, unless any Holders having made elections during the previous period or postponement, as the case may be, shall have had the opportunity to register their Registrable Securities pursuant to an effective registration statement prior to the current such period.
(biii) Anything in this Agreement If, following any election pursuant to the contrary notwithstanding, the Company shall be entitled Section 2(a)(i) hereof but prior to postpone and delay the filing of any Demand Registration until the earliest practicable time at which a registration statement in respect of such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereofelection, (iiA) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impedein its reasonable judgment and in good faith, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if resolves that the filing of such registration statementstatement and the offering of Registrable Securities pursuant thereto would be seriously detrimental to the Company, or and (B) the transactions contemplated Company furnishes to the Holders having made such election a certificate signed by such fling, would in the good faith judgment of the Board of Directors President of the Company result in giving notice of such determination (which certificate shall include a breach copy of the Company's license; and
(vi) such resolution), the Company shall not shall, notwithstanding the provisions of Section 2(a)(i), be required entitled to file a registration statement if postpone for up to 135 days the filing of such any registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares statement otherwise required to be offered or (iiprepared and filed by it pursuant to Section 2(a)(i) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registrationhereof; provided, however, that no such postponement may be effected if any other postponement of a registration pursuant to this Section 2 was in effect during the lead underwriter 12 months immediately preceding the commencement of such postponement, unless any Holders having made elections during the previous postponement shall have had the opportunity to register their Registrable Securities pursuant to an offering involving a Demand Registration advises the Holders that have requested such effective registration that the number of Ordinary Shares that the Company intends to include in addition statement prior to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationcurrent postponement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Schaefer Holdings, LP), Registration Rights Agreement (Superior Offshore International Inc.)
Demand Registrations. (a) Each Holder shall have At any time and from time to time after the right (first underwritten public offering of shares of Common Stock by Lehman and/or the "Demand Right") during the term of this Agreement to require the Company to file Other Lehman Entities, Lehman may make a written re▇▇▇▇▇ for registration statement under the Securities Act in respect u▇▇▇▇ ▇he Securiti▇▇ ▇▇▇ of all or some part of its and/or the Other Lehman Entities' Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement Securities (a "Demand Registration") providing for ); pr▇▇▇▇▇▇ that such request specifies the registrations number of all shares of Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares proposed to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringsold and the intended method of disposition thereof.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the The Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a effect more than three Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;Registrations pursuant to this Section 2.1.
(iic) a Holder shall A registration will not be entitled to request count as a Demand Registration until after twelve months from the Effective Date,
(iii) no request registration statement has become effective under the Securities Act and shall have remained or been effective for a Demand Registration period of 90 days in the aggregate or such lesser period as may be made by a Holder during necessary to permit the pendency sale of any lock-up period imposed all Registrable Securities registered in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto)Demand Registration.
(d) Notwithstanding anything contained in this Section 3.01If Lehman so elects, if the lead underwriter offering of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Securities pursuan▇ ▇▇ ▇uch Demand Registration shall be reduced to such number whichin the form of an underwritten offering. Lehman, in consultation with the opinion Company, shall select one or more na▇▇▇▇▇▇ly recognized firms of investment bankers to act as the book-managing, lead-managing and co-managing Underwriter or Underwriters in connection with such underwriters, can be sold without (i) materially offering and adversely affecting the price of the Ordinary Shares any additional investment bankers and managers to be offered or (ii) resulting used in a greater number of Ordinary Shares being registered than connection with the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of themoffering.
(e) The If at the time of any request to register Registrable Securities pursuant to Section 2.1, the Company shall is engaged, or has plans (which have been or are reasonably expected to be entitled approved by the Board of Directors within 30 days) to engage within 90 days of the time of the request in a registered public offering as to which the Stockholders may include newly issued Ordinary Shares such Registrable Securities pursuant to Section 2.2 hereof, or is engaged in any Demand Registration; providedactivity which, howeverin the good faith determination of the Board of Directors, that if would be adversely affected by the lead underwriter requested registration to the material detriment of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that Company, then the Company intends to include may at its option direct that such request be delayed for a period not in addition to excess of 180 days from the total number effective date of Registrable Shares that such offering, or in the Holders intend to include is case of such as other material activity, the lesser of (1i) would materially and adversely affect 180 days from the price date of the Ordinary Shares to be offered such request for registration or (ii) result in such time when the registration would not adversely affect such activity of the Company, such right to delay a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise request to be exercised by the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationnot more than once within any twelve-month period.
Appears in 1 contract
Sources: Registration Rights Agreement (Peabody Energy Corp)
Demand Registrations. (a) Each Holder If, following the date hereof, the Company is unable to file, cause to be effective or maintain the effectiveness of a shelf registration statement as required under Section 6.2, the Holders shall have the right by delivering a written notice to the Company (the "a “Demand Right"Notice”) during the term of this Agreement to require the Company to, pursuant to file the terms of this Agreement, register (including pursuant to an underwritten registration) under and in accordance with the provisions of the Securities Act the number of Registrable Securities beneficially owned by the Holders and requested by such Demand Notice to be so registered (a registration statement “Demand Registration”). 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 30 days after receipt by the Company of such Demand Notice (subject to paragraph (d) of this Section 6.4), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders in accordance with the methods of distribution elected by the 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 in respect of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicablepracticable after the filing thereof, but in provided, however, that the Company shall be required to effect registration pursuant to a request under this Section 6.4(a) on behalf of the Holders a maximum of one time. Notwithstanding anything to the contrary contained herein, no event later than 45 request may be made under this Section 6.4(a) within 180 days after the Company receives a written request from such Holder demanding that the Company so register the number effective date of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for filed by the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for covering a firm commitment underwritten public offeringoffering in which the Holders shall have been entitled to join pursuant to Section 6.5.
(b) Anything in this Agreement to In the contrary notwithstandingevent of a Demand Registration, the Company shall be required to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least 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.
(c) The Company shall be entitled to postpone and delay the filing or initial effectiveness of, or suspend the use of, a Demand Registration Statement, for a reasonable time not in excess of fifteen (15) consecutive days and during any three hundred sixty five (365) day period such Grace Periods shall not exceed an aggregate of forty-five days and the first day of any Demand Registration until Grace Period must be at least five (5) trading days after the earliest practicable time at which such Demand Registration can be reasonably effected last day of any prior Grace Period, if (i) the Company is conducting or about delivers to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) Holders a certificate signed by both the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements Chief Executive Officer and Chief Financial Officer of the Company for the fiscal period most recently ended prior to such written request are not yet availablecertifying that, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impedesuch registration, delay offering or otherwise use would reasonably be expected to materially adversely affect or materially interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of bona fide material nonpublic information which, if disclosed at such time, would be materially harmful to the interests financing of the Company or any material transaction under consideration by the Company or would require the disclosure of information that has not been, and its shareholdersis not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company. After Such certificate shall contain a statement of the expiration of any reasons for such postponement or delay suspension and without any further request from a Holder, the Company shall effect the filing an approximation of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto)anticipated delay.
(d) Notwithstanding anything contained in this Section 3.01, if The Holders shall have the lead underwriter of an offering involving right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered abandoned or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number whichwithdrawn, in which event the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand promptly abandon or withdraw such Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand RegistrationStatement.
Appears in 1 contract
Sources: Series F Convertible Preferred Stock Purchase Agreement (Odyssey Marine Exploration Inc)
Demand Registrations. (a) Each Holder shall have the right (the "Demand Right") during the term of this Agreement Any Shareholder may from time to require time make a written request to the Company to file a registration statement under the Securities Act in respect for Registration of all or some part of the outstanding Registrable Shares Securities held by such Holder (but not less than a Shareholder and any of its Affiliates; provided, that the number of Registrable Shares that Securities requested to be so Registered represents at least 2.65% one per cent. (1%) of all issued and outstanding Shares. Notwithstanding the preceding sentence, in the event that Orascom makes a written request to the Company pursuant to this Section 2.1(a) for Registration of all or part of the then outstanding Ordinary Registrable Securities held by it or any of its Affiliates, the number of such Registrable Securities requested to be so Registered by Orascom must represent at least five per cent (5%) of all issued and outstanding Shares at such time. A Registration that is undertaken by the Company in response to a valid request made by a Shareholder pursuant to this Section 2.1 shall be referred to herein as a "Demand Registration." Each such request shall specify the class and the aggregate amount and class of Registrable Securities to be Registered and the Company)intended methods of disposition and distribution thereof. Subject to the provisions of subsection (b) belowThe Company shall file, as promptly as practicablepracticable (and in any event, but in no event later than 45 days after the Company receives within sixty (60) days) following receipt of a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly for a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file , a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior Statement relating to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its reasonable best efforts to cause any such Demand Registration Statement promptly to be declared effective under the Securities Act, the "blue sky" laws of such jurisdictions as promptly the Shareholder or underwriter, if any, reasonably request, or any other Law, as practicable unless applicable, and to cause such Holder shall have, prior Registration Statement to remain effective until the later of (i) the date all Registrable Securities have been sold or (ii) nine (9) months after the effective date of such Registration Statement.
(b) Each Shareholder other than Orascom may make an unlimited number of requests for a Demand Registration pursuant to Section 2.1(a). Orascom may make one request for a Demand Registration pursuant to Section 2.1(a) at any time during a three-hundred sixty-five (365) day period and an additional request for a Demand Registration pursuant to Section 2.1(a) at any time during that same three-hundred sixty-five (365) day period with the approval of HTIHL, such approval not to be unreasonably withheld. Unless HTIHL has requested or has elected to participate in a Demand Registration, withdrawn Orascom shall have no right to make a request for or to participate in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Registration at any time when any amount remains payable by it under the Promissory Note or by the Parent under the terms of the Parent Guarantee. Notwithstanding anything contained in this Section 3.01:
(i) the above, the Company shall not be required to file a registration statement within 180 days of Registration Statement for a Demand Registration at any time during the one hundred eighty (180) day period following the effective date of another such Demand Registration Statement.
(c) Any Shareholder and/or its Affiliates may withdraw their Registrable Securities from a Demand Registration at any time prior registration statement filed as a result to the effectiveness of the applicable Registration Statement. Upon receipt of a written notice from a Shareholder to such effect, the Company shall cease all efforts to secure Registration of such Registrable Securities.
(d) Promptly upon receipt of any request for a Demand Registration by pursuant to Section 2.1(a) (but in no event more than ten (10) Business Days thereafter), the Company shall deliver a Holder or written notice (a "Demand Notice") of any such Registration request to all other Holders of Registrable Securities, and the Company shall include in such Demand Registration all such Registrable Securities with respect to which the Company has received written requests for inclusion therein from such Holders within 180 twenty-one (21) days after the date that the Demand Notice has been delivered. All requests made pursuant to this Section 2.l(d) shall specify the class and aggregate amount of Registrable Securities to be registered and the effective date intended method of a prior registration statement registering Ordinary Shares;distribution of such securities.
(iie) If a Holder shall not be entitled to request Shareholder that has requested a Demand Registration until after twelve months from so elects, the Effective Date,
(iii) no request for offering of Registrable Securities pursuant to such Demand Registration shall be in the form of an Underwritten Offering. If any offering pursuant to a Demand Registration may involves an Underwritten Offering, such Shareholder shall have the right to select the underwriter or underwriters to administer the offering; provided, that such underwriter or underwriters shall be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of reasonably acceptable to the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(df) Notwithstanding anything contained If at any time the managing underwriter or underwriters (the "Managing Underwriter") of a proposed Underwritten Offering of a class of Registrable Securities included in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises (or in the case of a Demand Registration not being underwritten, the Shareholder requesting such Demand Registration) informs the Holders that have requested of such registration that class of Registrable Securities in writing that, in its opinion, the total number of Registrable Shames that Company Securities of such class proposed to be included in such Demand Registration exceeds the Holders intend number which can be sold in (or during the time of) such offering without being likely to include is such as (i) would materially and adversely affect have a significant adverse effect on the price price, timing or distribution of the Ordinary Shares to be class of securities offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorbfor the class of securities offered, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to Securities of such number whichclass that, in the opinion of such underwritersManaging Underwriter (or, in the case of a Demand Registration which is not underwritten, the Shareholder requesting such Demand Registration), can be sold included without having such an adverse effect shall be allocated as follows:
(i) materially and adversely affecting first, pro rata among the price Holders which have requested participation in the Demand Registration (based, for each such Holder, on the percentage derived by dividing (i) the number of the Ordinary Shares Registrable Securities of such class which such Holder has requested to be offered or include in such Demand Registration by (ii) resulting in a greater the aggregate number of Ordinary Shares being registered than Registrable Securities of such class which all such Holders have requested to include); and
(ii) second, and only if all the market could absorb. Such Registrable Shares to be included securities referenced in such registration shall be allocated clause (i) have been included, pro rata among all requesting Holders any other Persons contractually entitled to participate in such Demand Registration (based, for each such Person, on the basis of percentage derived by dividing (i) the relative number of securities originally Registrable Securities of such class which such Person has requested to be registered include in such Demand Registration by each (ii) the aggregate number of themRegistrable Securities of such class which all such Persons have requested to include).
(eg) The If the filing, initial effectiveness, publication or continued use of a Registration Statement in respect of a Demand Registration at any time would require the Company shall be entitled to include newly issued Ordinary Shares in any make an Adverse Disclosure, the Company may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement (a "Demand RegistrationSuspension"); provided, however, that if the lead underwriter of an offering involving Company shall not be permitted to exercise a Demand Registration advises Suspension (A) more than once during any six-month period, (B) for a period exceeding thirty (30) days on any one occasion or (C) for a period exceeding forty-five (45) days in any twelve-month period. In the case of a Demand Suspension, the Holders agree to suspend, immediately upon their receipt of the notice referred to above, use of the prospectus relating to such Demand Registration in connection with any sale or purchase, or offer to sell or purchase, Registrable Securities. The Company shall immediately notify the Holders upon termination of any Demand Suspension, and amend or supplement the related prospectus, if necessary, so it does not contain any untrue statement or omission and furnish to the Holders such number of copies of such prospectus as so amended or supplemented as the Holders may reasonably request. The Company represents that, as of the date hereof, it has no knowledge of any circumstance that have requested would reasonably be expected to cause it to exercise its rights under this Section 2.1(g).
(h) Any Shareholder may make a written request to the Company to initiate a public offering in any Alternative Listing Jurisdiction of all or part of the outstanding Registrable Securities held by such registration Shareholder and any of its Affiliates; provided, that the number of Ordinary Shares Registrable Securities requested to be so offered in such a public offering in any Alternative Listing Jurisdiction represents at least one per cent. (1%) of all issued and outstanding Shares. Notwithstanding the preceding sentence, in the event that Orascom makes a written request to the Company intends pursuant to include this Section 2.1(h) to initiate a public offering in addition to any Alternative Listing Jurisdiction of all or part of the total outstanding Registrable Securities held by it or any of its Affiliates, the number of such Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares Securities requested to be so offered or in such a public offering in any Alternative Listing Jurisdiction by Orascom must represent at least five per cent (ii5%) result in of all issued and outstanding Shares at such time. If a greater number of Ordinary Shares being offered than the market could reasonably absorbShareholder proposes to initiate such an offering, then the Holders it will promptly, so advise the Company and may require, by give written notice to the Company accompanying specifying the class and aggregate amount of Registrable Securities to be offered, the proposed method of disposition, the proposed exchange(s) on which such adviceRegistrable Securities will be listed (if any) and, thatif applicable, the proposed filings or registrations under any applicable securities laws. Upon receipt of such notice, the Company shall take all necessary action to cause the extent Company to (i) conduct such an offering of such Registrable Securities, (ii) list such Registrable Securities on such exchange(s), and (iii) comply with all applicable securities laws, including, without limitation, providing such access to records, assistance and information as may be required to enable the production of a prospectus or offering circular and all other documentation reasonable required by the underwriters, and causing the Company to give such representations and warranties and to enter into all underwriting or placement agent agreements, covenants and indemnities with the underwriters of such offering as are necessary to meet effect such limitationoffering, newly issued Ordinary Shares list the Registrable Securities on such exchange(s) and comply with all applicable securities laws. Each request by a Shareholder pursuant to this Section 2.1(h) shall be excluded from such deemed to be a request for a Demand Registration. To the fullest extent possible under applicable Law, with respect to any offering initiated pursuant to a request under this Section 2.1(h), (y) Holders of Registrable Securities shall have such rights as against the Company and the underwriter(s) equivalent to, and providing benefits substantially similar to, the rights the Holders would enjoy in respect of a Demand Registration hereunder, and (z) such offering shall be conducted and the Company shall be under the same obligations as though such offering were a Demand Registration (and, in such context, the terms "Registration" and "Register" shall mean the publication of the relevant Registration Statement or filing of such Registration Statement with the relevant regulatory authority, as the case may be, in accordance with the applicable Law of such Alternative Listing Jurisdiction).
Appears in 1 contract
Sources: Registration Rights Agreement (Orascom Telecom Holding S.A.E.)
Demand Registrations. 2.1 Commencing on the earlier of (i) six months after the date on which the Company completes an initial public offering of Common and (ii) two years after the first issuance of the Series B Preferred:
(a) Each the Holder shall have the right (the "Demand Right") during the term or Holders of this Agreement to require the Company to file a registration statement under the Securities Act in respect more than an aggregate of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.6520% of the then outstanding Ordinary Shares shares of the CompanyInvestor Registrable Stock, shall be entitled to (a) two demand registrations on Form S-1 or any similar long-form registration (an "Investor Long Form Demand Registration"). Subject to the provisions of subsection , and (b) below, as promptly as practicable, but in no event later than 45 days after an unlimited number of demand registrations on Form S-2 or S-3 or any similar short-form registration (an "Investor Short Form Demand Registration"); and by providing a written notice to the Company receives a written request from such Holder demanding requesting that the Company so register the number of any eligible Registrable Shares Stock specified in such requestthe notice, under the Securities Act and under other relevant securities laws, for disposition in accordance with methods stated in the notice. All demand registrations pursuant to this SECTION 2.1 are collectively referred to herein as the "Demand Registrations".
2.2 When it receives a registration notice under SECTION 2.1 above, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly deliver a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount copy of the Registrable Shares registration notice to be registered. The Demand Registration shall be for each Holder who is not a firm commitment underwritten public offering.
(b) Anything in this Agreement party to the contrary notwithstandingregistration notice, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, whom may then the Holders will promptly, so advise the Company and may requirespecify, by written notice to the Company accompanying such advicewithin 20 days of the date of the Company's notice, thatthe number of shares of Registrable Stock held by it that it wishes to include in any Demand Registration pursuant to the registration notice.
2.3 When it receives a registration notice under SECTION 2.1 above, the Company shall use its best efforts to effect the Demand Registration under the Securities Act of Registrable Stock specified in the registration notice under SECTION 2.1 and subsequent notices under SECTION 2.2 above, all to the extent necessary requisite to meet permit disposition by such limitation, newly issued Ordinary Shares Holders in accordance with the intended methods of disposition described in the registration notice.
2.4 The Company shall be excluded from such Demand Registrationuse its best efforts to qualify for registration on Form S-3 or any comparable or successor form or forms; and to that end the Company shall register (whether or not required by law to do so) the Common under the Exchange Act in accordance with the provisions of that Act following the effective date of the first registration of any securities of the Company on Form S-1 or any comparable or successor form.
Appears in 1 contract
Demand Registrations. (a) Each Holder shall have At any time and from time to time on or after the right date which is six months following the closing of the first registered public offering of PublicCo (the "“Initial Public Offering”), an Initiating Holder may make a written request to PublicCo (a “Demand Right"Request”) during the term of this Agreement to require the Company to file a for registration statement under the Securities Act in respect of all or some part of the Registrable Shares Securities held by such Initiating Holder and its Affiliates and Permitted Transferees (but not less than a number “Demand Registration”); provided that the Registrable Securities requested to be registered, together with any Registrable Securities requested to be registered pursuant to Section 2.2 of Registrable Shares that represents at least 2.65% this Schedule III, shall, on the date such request for a Demand Registration is delivered, have an aggregate market value of the then outstanding Ordinary Shares $20,000,000 (before calculation of the Companyunderwriting discounts and commissions). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written Such request from such Holder demanding that the Company so register will specify the number of shares of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause Securities proposed to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall sold and will also specify the amount intended method of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringdisposition thereof.
(b) Anything in this Agreement to the contrary notwithstandingWithin 10 days after receipt of each Demand Request, the Company PublicCo shall be entitled to postpone and delay the filing give written notice of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected Request to all Securityholders and each of PublicCo and the Partnership (if (iapplicable) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its reasonable best efforts to cause a Registration Statement on Form S-3 under the Securities Act (or any comparable or successor form permitting resale of securities on a continuous or delayed basis pursuant to Rule 415), or, if PublicCo is ineligible to use Form S-3, on another appropriate form, for the resale of such Registrable Securities as may be requested by the Initiating Holder and its Affiliates and any Persons exercising piggy-back rights under Section 2.2 to be filed with the SEC not later than 60 days after receipt of a Demand Request. Each of PublicCo and the Partnership (if applicable) shall use its reasonable best efforts to cause any such Demand Registration Statement to be declared effective by the SEC as promptly as practicable unless after such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registrationfiling.
(c) Notwithstanding anything contained in this Section 3.01:
(i) If the Company shall not be required to file a registration statement within 180 days of Initiating Holder so elects, the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required such Registrable Securities pursuant to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter form of an offering involving a Demand Registration advises the Holders that have requested such registration that the number Underwritten Offering. PublicCo shall select one or more nationally recognized firms of Ordinary Shares that the Company intends to include in addition investment bankers, reasonably acceptable to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, thatInitiating Holder, to act as the extent necessary to meet managing Underwriter or Underwriters in connection with such limitation, newly issued Ordinary Shares shall be excluded from such Demand RegistrationUnderwritten Offering.
Appears in 1 contract
Sources: Securityholders Agreement (American Seafoods Group LLC)
Demand Registrations. (a) Each Holder shall have At any time after an initial public offering of shares of Common Stock of the right Company, as a result of which a minimum of eighteen percent (18%) of the "Demand Right") during Company’s Common Stock on a fully-diluted basis is held by the term of this Agreement public, and which is carried out pursuant to require the Company to file a registration statement under the Securities Act (the “Initial Public Offering”), Safeway may request in respect writing that the Company effect the registration under the Securities Act of all or some part of the Registrable Shares Securities held by such Holder (but not less than a Safeway and its Affiliates, specifying in the request the number and type of Registrable Shares that represents at least 2.65% Securities to be registered (such notice is hereinafter referred to as a “Safeway Demand Registration Request”). Upon receipt of such Safeway Demand Registration Request, the Company will promptly effect the registration under the Securities Act of the then outstanding Ordinary Shares of Registrable Securities which the Company). Subject Company has been so requested to register by Safeway; provided, however, that notwithstanding the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such requestthis Section 9.1(a), the Company shall not be obligated to file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 9.1 within the six month period immediately following (ai) shall specify the amount Initial Public Offering, or (ii) the effective date of any registration previously effected by the Registrable Shares Company pursuant to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringthis Section 9.1.
(b) Anything in this Agreement to Notwithstanding the contrary notwithstandingprovisions of Section 9.1(a) hereof, the Company shall not be entitled obligated to postpone and delay the filing file more than an aggregate of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join six registration statements pursuant to this Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration9.1.
(c) Notwithstanding anything contained in If the Company proposes to effect a registration requested pursuant to this Section 3.01:
(i) 9.1 by the Company shall not be required to file filing of a registration statement within 180 days on Form S-3 (or any similar short-form registration statement) and the intended method of distribution is through a firm commitment underwriting (an “Underwritten Offering”), the effective date Company will comply with any request by the managing underwriter to effect such registration on another permitted form if such managing underwriter advises the Company that, in its opinion, the use of a prior another form of registration statement filed as a result is of a request for a Demand Registration by a Holder or within 180 days of material importance to the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing success of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto)proposed offering.
(d) Notwithstanding anything contained in this A registration requested pursuant to Section 3.019.1(a) hereof will not be deemed to have been effected unless it has become effective under the Securities Act; provided, however, that if after it has become so effective, the lead underwriter offering of an offering involving a Demand Registration advises the Holders that have requested Safeway’s Registrable Securities pursuant to such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price interfered with by any stop order, injunction or other order or requirement of the Ordinary Shares to be offered Commission or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorbother governmental agency or court, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall will be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested deemed not to be registered by each of themhave been effected.
(e) The Company will pay all Registration Expenses in connection with each of the registrations of Registrable Securities effected by it pursuant to this Section 9.1.
(f) Whenever a requested registration pursuant to this Section 9.1 involves an Underwritten Offering, the only shares that may be included in such Offering are (i) Safeway’s Registrable Securities and (ii) securities of the Company being offered and sold for the Company’s behalf in such Offering (“Issuer Securities”).
(g) If a registration pursuant to this Section 9.1 involves an Underwritten Offering and the managing underwriter shall be entitled to include newly issued Ordinary Shares advise the Company that, in any Demand Registration; providedits judgment, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares shares proposed to be offered or (ii) result included in a greater number of Ordinary Shares being offered than the such Underwritten Offering should be limited due to market could reasonably absorbconditions, then the Holders Company will promptly, promptly so advise Safeway, and the Company and may requireIssuer Securities, by written notice to the Company accompanying if any, shall first be excluded from such advice, that, Underwritten Offering to the extent necessary to meet such limitation. If further exclusions are necessary to meet such limitation, newly issued Ordinary Shares the number of Registrable Securities of Safeway shall be excluded from until such limitation has been met.
(h) By making a Safeway Demand RegistrationRegistration Request, Safeway shall be deemed to have (i) a present intention to sell the Registrable Securities covered thereby, (ii) agreed to execute all consents, powers of attorney and other documents required in order to cause the registration statement to become effective, (iii) agreed, if the offering is at the market, to give the Company written notice of the first bona fide offering of the Registrable Securities covered thereby and to use the prospectus forming a part of the registration statement for only the period permitted by the Securities Act and the rules and regulations promulgated by the Commission thereunder, and (iv) agreed, in connection with the disposition of the Registrable Securities covered thereby, to comply with Section 10 of the Exchange Act and any other applicable rules and regulations promulgated by the Commission under the Exchange Act.
Appears in 1 contract
Sources: Stockholders Agreement (Blackhawk Network Holdings, Inc)
Demand Registrations. (ai) Each At any time from and after the date 12 months after the Closing Date, any Holder shall have or Holders may elect, by giving written notice thereof to the right (the "Demand Right") during the term of this Agreement Company, to require the Company to file use its reasonable best efforts to register all or a registration statement portion of its Registrable Securities under the Securities Act in respect of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) belowAct; provided, as promptly as practicablehowever, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so shall be obligated to register the number -------- ------- Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 5% or more of the then-outstanding securities of the class or series to which such Registrable Shares specified Securities belong; provided, further, that in any event the Company shall be obligated to register -------- ------- such requestRegistrable Securities upon such election only if the Registrable Securities to be registered have a total market value (or, if there is no existing public market, a proposed maximum aggregate offering price to be set forth on the facing page of the applicable registration statement) of at least $5 million. Promptly following such election, the Company shall file with (1) give notice to each other Holder of Registrable Securities of such election, which notice shall set forth the Commission identity of the electing Holders, and thereafter (2) use its reasonable best efforts to cause to be declare declared or become effective promptly under the Securities Act a registration statement (a "Demand Registration") providing for the registrations registration of, and the sale in accordance with the intended method or methods of all distribution thereof by the electing Holders of, the Registrable Shares as such Holder shall have demanded be registeredSecurities. The Company may satisfy its obligation shall be required to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made cause to become effective pursuant to this Section 3.01 2(a) no more than three registration statements in the aggregate and no more than one registration statement in any six month period. Notwithstanding the foregoing, the Company shall not be obligated to register Registrable Securities upon any election pursuant to this Section 2(a)(i) if (a1) shall specify fewer than 180 days have elapsed after the amount effective date of a registration statement registering newly issued or treasury shares of the Registrable Shares to be registered. The Demand Registration shall be Company's common stock for purposes of a primary offering (as defined in Section 2(b)(i) hereof) on a firm commitment underwritten public offeringbasis, but only if and to the extent that (x) the underwriting agreement entered into in connection with any such offering expressly prohibited registration of Registrable Securities upon such election and (y) no period referred to in this sentence, and no postponement referred to in Section 2(a)(iii) hereof, was in effect during the 12 months immediately preceding the commencement of such 180 day period, unless any Holders having made elections during the previous period or postponement, as the case may be, shall have had the opportunity to register their Registrable Securities pursuant to an effective registration statement prior to the current such period.
(bii) Anything in this Agreement In the event of any registration of Registrable Securities pursuant to the contrary notwithstandingSection 2(a)(i) hereof, the Company shall 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 entitled issued by the Company, are held in the Company's treasury or are then outstanding and held by other persons) to postpone and delay be covered by such registration statement or otherwise to be included in such registration; provided, however, that any other Holder of Registrable Securities may elect, by giving written notice to such effect to the Company no later than 15 business days after the Company shall have given the notice referred to in clause (1) of Section 2(a)(i), to have such Holder's Registrable Securities included in such registration, in which case such Holder shall be treated for all purposes hereunder as having made a demand for registration pursuant to this Section 2(a).
(iii) In the event that, following any election pursuant to Section 2(a)(i) hereof but prior to the filing of any Demand Registration until the earliest practicable time at which a registration statement in respect of such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereofelection, (iiA) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impedein its reasonable judgment and in good faith, delay or otherwise resolves that the filing of such registration statement and the offering of Registrable Securities pursuant thereto would materially interfere with any pending or contemplated financing, significant acquisition, corporate reorganization or other similar transaction involving the Company, and (yB) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After gives the expiration Holders having made such election written notice of any such postponement or delay and without any further request from determination (which notice shall include a Holdercopy of such resolution), the Company shall effect shall, notwithstanding the provisions of Section 2(a)(i) hereof, be entitled to postpone for up to 90 days the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration registration statement otherwise required to be declared effective as promptly as practicable unless such Holder shall have, prior prepared and filed by it pursuant to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(cSection 2(a)(i) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registrationhereof; provided, however, that no such postponement may be effected if any other -------- ------- postponement of a registration pursuant to this Section 2 was in effect during the lead underwriter 12 months immediately preceding the commencement of such postponement, unless any Holders having made elections during the previous postponement shall have had the opportunity to register their Registrable Securities pursuant to an offering involving a Demand Registration advises the Holders that have requested such effective registration that the number of Ordinary Shares that the Company intends to include in addition statement prior to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationcurrent postponement.
Appears in 1 contract
Demand Registrations. (a) Each 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 qualitative listing requirements, the 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 (the "Demand Right") during the term of this Agreement to require demand that the Company satisfy its obligations pursuant to file a this Section 3 by use of the SEC's Form S-8, or any successor form thereto, subject to applicable law, or such other SEC registration statement under 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 Securities Act Company in respect of writing that it intends to offer or cause to be offered for public sale all or some any portion of the Registrable Shares held by such Holder Shares, and within ten (but not less than a number of Registrable Shares that represents at least 2.65% 10) days of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection receipt after such notice.
(b) below, as promptly as practicable, but in no event later than 45 days after Upon written request of Holder the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter will use its best efforts to cause all or any part of the Registrable Securities that may be requested by Holder to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 registered under the Securities Act. All requests made Act as expeditiously as possible.
(c) If Holder intends to distribute the Registrable Securities covered by its request by means of an underwriting, it shall so advise the Company as part of its request.
(d) Notwithstanding the foregoing, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.01 3: (ai) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, if the Company shall be entitled furnish to postpone and delay Holder a certificate signed by the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements President of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine stating that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving it would be seriously detrimental to the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed Company and its stockholders for such registration statement to be effected at such time, would be materially harmful and that it is essential to the interests of Company to defer the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holderfiling, in which event the Company shall effect have the right to defer the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such 3 registration statement for a period of not more than 120 days after receipt of the request of the Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in under this Section 3.01:
(i) 3; provided, however that the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of utilize this right more than once in any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license12 month period; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result during the period starting with the date 60 days prior to the Company's good faith estimate of filing of, and ending on a date 180 days after the effective date of, a registration statement filed under the Securities Act (other than a registration relating solely to the sale of securities to participants in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of themCompany stock plan).
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.
Appears in 1 contract
Demand Registrations. (a) Each Holder shall have At any time after the date hereof, the holder of the Warrant representing the right (the "Demand Right") during the term to purchase at least 200,000 shares of this Agreement to require Common Stock of the Company or the holder of at least 200,000 Warrant Shares (equitably adjusted to file a reflect stock splits, stock dividends, combinations or similar events and adjustments pursuant to Section 4 of the Warrant) may request registration statement under the Securities Act in respect of 1933, as amended (the "Securities Act"), of all or some part of their Warrant Shares on Form S-1 or any other form available for the registration of the Registrable Warrant Shares held ("Demand Registrations"), by written notice to the Company of such Holder (but request accompanied by the simultaneous exercise of the Warrant to the extent of not less than a number Twenty Thousand (20,000) shares of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares Common Stock of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable$.01 Par Value, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register less the number of Registrable Shares specified in previously exercised shares which have not been registered. Within 10 days after receipt of any such request, the Company shall file with the Commission and thereafter use its best efforts give written notice of such request to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount other holders of the Registrable Warrant and of the Warrant Shares and shall, subject to be registered. The Demand Registration shall be the provisions of Section 2(c) hereof, include in such registration all Warrant Shares with respect to which the Company has received written requests for a firm commitment underwritten public offeringinclusion therein within 30 days after the receipt of the Company's notice.
(b) Anything in this Agreement Subject to the contrary notwithstandingprovisions of Section 2(a), the Company shall be entitled to postpone and delay the filing of any Demand pay all Registration until the earliest practicable time at which Expenses (as defined in Section 6 hereof) in connection with each such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the registration. The Company shall determine that any such filing or the offering of any Registrable Shares would (x) pay all Registration Expenses in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere connection with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from registration initiated as a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall whether or not constitute a Demand Registrationconsummated.
(c) Notwithstanding anything contained In the event that the managing underwriters of the requested Demand Registration advise the Company in this Section 3.01:
(i) writing that in their judgment in order to effect an orderly public distribution the number of Warrant Shares proposed to be included in any such Demand Registration must be limited, the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed include in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then only the number of Registrable Warrant Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting in an orderly public distribution, such limitation to be imposed pro rata among the price holders of the Ordinary Shares Warrant or of the Warrant Shares, as the case may be, who are participating in such registration on the basis of the amount of such securities initially proposed to be offered registered by 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 (ii) resulting in and was able to include a greater number minimum of Ordinary 66-2/3% of the shares of Warrant Shares being registered than the market could absorb. Such Registrable 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 Registration might reasonably be expected to have an adverse effect on any proposal or plan by the Company to engage in any acquisition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or similar transaction. If the Company elects to postpone the filing or effectiveness of a Demand Registration, it shall be allocated pro rata among all requesting Holders on the basis promptly notify each holder of the relative number Warrant and of securities originally requested to be registered by each of themWarrant Shares.
(e) The Company shall be entitled to include newly issued Ordinary holders of a majority of the Warrant Shares participating in any Demand Registration; providedRegistration shall have the right to select the investment banker(s) and manager(s) to administer the offering, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition subject to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to Company's approval, which shall not be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationunreasonably withheld.
Appears in 1 contract
Sources: Registration Agreement (SPX Corp)
Demand Registrations. (a) Each Holder shall have During the right (Effective Period, one or more Initiating Holders owning, individually or in the "Demand Right") during aggregate, at least 10% of the term Common Stock comprising the Registrable Securities may request in writing, with a copy of this Agreement such request delivered simultaneously to require each non-Initiating Holder, that the Company to file a registration statement Registration Statement under the Securities Act in respect ("Demand Registration") covering the registration of all or some at least 10% of the Registrable Shares held Securities and the intended plan and method of disposition of such shares. The ________________ * Effective Date of Plan of Reorganization. making of such demand by such an Initiating Holder (but not less than a shall be binding upon all Investors with respect to the number of Registrable Shares that represents at least 2.65% of demand registration rights provided for in Section 1(c) hereof. After the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after date on which the Company receives such a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its reasonable best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration"i) providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 Statement under the Securities Act. All requests made Act on the appropriate form therefor (using Form S-3 or other "short form," if available pursuant to this Section 3.01 (athe advice of counsel) shall specify the amount covering all of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities Securities specified by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to Initiating Holders within 45 days after the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that 45 day period shall be extended by the number of Ordinary Shares that days having elapsed from the time the Company intends to include in addition furnishes to the total number of Registrable Shares that the Initiating Holders intend to include is such as (1) would materially and adversely affect the price a reasonably complete draft of the Ordinary Shares proposed Registration Statement to be offered filed, and the date on which a majority of the Registrable Securities to which the proposed Registration Statement relates notifies the Company that such draft is acceptable to such Initiating Holders insofar as the draft of the proposed Registration Statement contains information that relates to them and the intended method or methods of distribution as furnished by them to the Company and (ii) result to cause such Registration Statement to be declared effective as quickly as reasonably possible after the filing referenced in clause (i) above. The Company will keep the Demand Registration current and effective for at least 120 days (such 120 day period to be calculated without regard to any Deferral Period), or a greater number shorter period during which the holders of Ordinary Shares being offered than such demand shall have sold all Registrable Securities covered by the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.
Appears in 1 contract
Demand Registrations. (a) Each As long as Holder is engaged by the Corporation, at any time after May 10, 2003. 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 Optionee shall have the right (the "Demand Right") during the term of this Agreement to require demand that the Company satisfy its obligations pursuant to file a this Section 3 by use of the SEC's Form S-8, or any successor form thereto, subject to applicable law, or such other SEC registration statement under 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 Securities Act Company in respect of writing that it intends to offer or cause to be offered for public sale all or some any portion of the Registrable Shares held by such Holder Shares, and within ten (but not less than a number of Registrable Shares that represents at least 2.65% 10) days of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection receipt after such notice.
(b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a Upon written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such requestHolder, the Company shall file with the Commission and thereafter will use its best efforts to cause all or any part of the Registrable Securities that may be requested by Holder to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 registered under the Securities Act. All requests made Act as expeditiously as possible.
(c) If Holder intends to distribute the Registrable Securities covered by its request by means of an underwriting, it shall so advise the Company as part of its request.
(d) Notwithstanding the foregoing, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.01 2: (ai) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, if the Company shall be entitled furnish to postpone and delay Holder a certificate signed by the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting President or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements Chief Executive Officer of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine stating that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving it would be seriously detrimental to the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed Company and its stockholders for such registration statement to be effected at such time, would be materially harmful and that it is essential to the interests of Company to defer the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holderfiling, in which event the Company shall effect have the unconditional right to defer the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such registration statement for a period of not more than 120 days after receipt of the request of the Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in under this Section 3.01:
(i) 2; provided, however that the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of utilize this right more than once in any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license12 month period; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result during the period starting with the date 60 days prior to the Company's good faith estimate of filing of, and ending on a date 180 days after the effective date of, a registration statement filed under the Securities Act (other than a registration relating solely to the sale of securities to participants in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of themCompany stock plan).
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.
Appears in 1 contract
Demand Registrations. (a) Each Holder shall have Subject to Section 5.3, at any time prior to the right first anniversary of the Closing or following the twenty-month anniversary of the Closing, Parent, on behalf of the Shareholder Group, may, on not more than twelve (12) separate occasions in the "Demand Right") aggregate and not more frequently than once during the term of this Agreement to any nine-month period, require the Company to file a registration statement under the Securities Act in respect of all or some a portion of the Registrable Shares held by (so long as such Holder (but not request covers Registrable Shares with a Market Value on the date of the Demand Request of at least $300 million if the aggregate Market Value of all Registrable Shares on such date is at least $300 million or, if such Market Value is less than a $300 million, so long as such request covers all Registrable Shares), by delivering to the Company written notice stating that such right is being exercised, specifying the number of Registrable Shares that represents at least 2.65% shares of Common Stock to be included in such registration (the then outstanding Ordinary Shares shares subject to such request, the "Demand Shares") and describing the intended method of the Companydistribution thereof, which may include an underwritten offering (a "Demand Request"). Subject to the provisions of subsection (b) belowSection 5.7, as promptly as practicable, but in no event later than 45 days after the Company receives upon receiving a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such requestDemand Request, the Company shall file with the Commission and thereafter (i) use its reasonable best efforts to cause to be declare effective file as promptly as reasonably practicable a registration statement on such form as the Company may reasonably deem appropriate (provided that the Company shall not be obligated to register any securities on a "shelf" registration statement or otherwise to register securities for offer or sale on a continuous or delayed basis) providing for the registration of the sale of such Demand Shares pursuant to the intended method of distribution (a "Demand Registration") providing for and (ii) after the registrations filing of all Registrable Shares as an initial version of the registration statement, use reasonable best efforts to cause such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 to be declared effective under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify Act as promptly as practicable after the amount date of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringfiling of such registration statement.
(b) Anything Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, the Company shall be entitled to postpone and delay delay, for reasonable periods of time, but in no event more than an aggregate of 60 days during any 12-month period (a "Blackout Period"), the filing or effectiveness of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (xi) in the good faith judgment of the Board of Directors of the CompanyBoard, impede, delay or otherwise interfere with any pending or contemplated financing, material acquisition, corporate reorganization or other similar material transaction involving the Company, (yii) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated financing, offering or sale of any class of securities by the Company, Company or (ziii) in the good faith judgment of the Board, require disclosure of material nonpublic non-public information (other than information relating to an event described in clauses (i) or (ii) above) which, if disclosed at such time, would be materially harmful to the best interests of the Company and its shareholdersstockholders; provided, however, that the Company shall give written notice to Parent of its determination to postpone or delay the filing of any Demand Registration; and provided, further, that in the event that the Company proposes to register Common Stock, whether or not for sale for its own account, during a Blackout Period, the Shareholder Group shall have the right to exercise its rights under Section 5.2 of this Agreement with respect to such registration, subject to the limitations contained in this Agreement on the exercise of such rights. After Upon notice by the expiration Company to Parent of any such postponement or delay and without any further request from a Holderdetermination, the Company shall effect the filing members of the relevant Demand Registration and Shareholder Group shall use its best efforts to cause keep the fact of any such Demand Registration to notice strictly confidential, and during any Blackout Period, promptly halt any offer, sale, trading or transfer by it of any Common Stock for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be declared effective as earlier terminated in writing by the Company) and promptly as practicable unless such Holder shall havehalt any use, prior to publication, dissemination or distribution of the effective date of such Demand Registration, withdrawn each prospectus included therein, and any amendment or supplement thereto by it 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 by the Company, will deliver to the Company any copies then in its initial request, in which case possession of the prospectus covering such withdrawn request shall not constitute a Demand RegistrationRegistrable Shares.
(c) Notwithstanding anything contained In connection with an underwritten offering, if the managing underwriter or co-managing underwriter reasonably and in this Section 3.01:
(i) good faith shall have advised the Company or Parent that, in its opinion, the number of Demand Shares subject to a Demand Request exceeds the number which can be sold in such offering, the Company shall not include in such registration the number of Demand Shares that, in the opinion of such managing underwriter or underwriters, can be required to file a registration statement within 180 days of the effective date of a prior registration statement filed sold in such offering; provided that if as a result of a request for a Demand Registration by a Holder or within 180 days any reduction pursuant to this paragraph (c) the aggregate Market Value of the effective date of a prior Demand Shares to be so included is less than $300 million, the Shareholder Group may withdraw such Demand Request with respect to all Demand Shares covered thereby and such registration statement registering Ordinary Shares;
(ii) a Holder shall not be count for the purposes of determining the number of Demand Registrations to which the Shareholder Group is entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related theretounder Section 5.1(a).
(d) Notwithstanding anything contained in this Section 3.01In connection with any underwritten offering, if the lead managing underwriter of an offering involving a Demand Registration advises the Holders that have requested for such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to selected by Parent, provided that such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration managing underwriter shall be allocated pro rata among all requesting Holders on a nationally recognized investment banking firm and shall be reasonably accept- able to the basis of the relative number of securities originally requested Company. The Company may, at its option, select a nationally recognized investment banking firm reasonably acceptable to be registered by each of themParent to act as co-managing underwriter.
(e) The Company Nothing in this Article V shall be entitled to include newly issued Ordinary Shares in affect or supersede any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered transfer restrictions set forth in Article IV hereof or (ii) result in a greater number any of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationother provisions of this Agreement.
Appears in 1 contract
Sources: Stockholders Agreement (Diageo PLC)
Demand Registrations. (a) Each Holder shall have At any time and from time to time after the right (the "Demand Right") during the term first underwritten public offering of this Agreement to require the Company to file shares of Common Stock by NWA, NWA may make a written request for registration statement under the Securities Act in respect of all or some part of the its Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement Securities (a "Demand Registration") providing for ); provided that such request specifies the registrations number of all shares of Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares proposed to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringsold and the intended method of disposition thereof.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the The Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a effect more than three Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;Registrations pursuant to this Section 2.1.
(iic) a Holder shall A registration will not be entitled to request count as a Demand Registration until after twelve months from the Effective Date,
(iii) no request registration statement has become effective under the Securities Act and shall have remained or been effective for a Demand Registration period of 90 days in the aggregate or such lesser period as may be made by a Holder during necessary to permit the pendency sale of any lock-up period imposed all Registrable Securities registered in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto)Demand Registration.
(d) Notwithstanding anything contained in this Section 3.01If NWA so elects, if the lead underwriter offering of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend Securities pursuant to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number whichin the form of an underwritten offering. NWA, in consultation with the opinion Company, shall select one or more nationally recognized firms of investment bankers to act as the book-managing, lead-managing and co-managing Underwriter or Underwriters in connection with such underwriters, can be sold without (i) materially offering and adversely affecting the price of the Ordinary Shares any additional investment bankers and managers to be offered or (ii) resulting used in a greater number of Ordinary Shares being registered than connection with the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of themoffering.
(e) The If at the time of any request to register Registrable Securities pursuant to Section 2.1, the Company shall is engaged, or has plans (which have been or are reasonably expected to be entitled approved by the Board of Directors within 30 days) to engage within 90 days of the time of the request in a registered public offering as to which NWA may include newly issued Ordinary Shares such Registrable Securities pursuant to Section 2.2 hereof, or is engaged in any Demand Registration; providedactivity which, howeverin the good faith determination of the Board of Directors, that if would be adversely affected by the lead underwriter requested registration to the material detriment of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that Company, then the Company intends to include may at its option direct that such request be delayed for a period not in addition to excess of 180 days from the total number effective date of Registrable Shares that such offering, or in the Holders intend to include is case of such as other material activity, the lesser of (1i) would materially and adversely affect 180 days from the price date of the Ordinary Shares to be offered such request for registration or (ii) result in such time when the registration would not adversely affect such activity of the Company, such right to delay a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise request to be exercised by the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationnot more than once within any twelve-month period.
Appears in 1 contract
Sources: Registration Rights Agreement (Pinnacle Airlines Corp)
Demand Registrations. (a) Each Holder At any time after the six-month anniversary of the consummation of the Stock Purchase pursuant to the SPA, the Holders’ Representative shall have the right by delivering a written notice to the Company (the "a “Demand Right"Notice”) during the term of this Agreement to require the Company to, pursuant to file the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities Beneficially Owned by any Holders and requested by such Demand Notice to be so registered (a registration statement “Demand Registration”); provided, however, that a Demand Notice may only be made if the sale of the Registrable Securities requested to be registered by the Holders’ Representative (x) relates to at securities representing at least 5% of the then-outstanding shares of Common Stock or (y) is reasonably expected to result in aggregate gross cash proceeds in excess of $25,000,000 (without regard to any underwriting discount or commission). 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 30 days (or, if the Company is not then eligible to use Form S-3, 90 days) after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 4.1), 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 (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 in respect of all or some of as promptly as practicable after the Registrable Shares held by filing thereof; provided that if such Holder (but not less than Demand Notice relates to a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to Shelf Demand, the provisions of subsection paragraph (b) belowof this Section 4.1 shall apply.
(b) The Holders’ Representative shall have the right to elect in the Demand Notice for any Demand Registration to be made pursuant to a Shelf Registration Statement, as promptly as practicable, but in no event later than 45 days after if the Company receives is then eligible to file a written request from such Holder demanding that the Company so register the number of Registrable Shares specified Shelf Registration Statement (a “Shelf Demand”), in such request, which event the Company shall file with the Commission SEC, as promptly as reasonably practicable, but not later than 30 days after receipt by the Company of such Demand Notice (subject to paragraph (e) of this Section 4.1), a Shelf Registration Statement relating to the offer and thereafter sale of the Registrable Securities requested to be included therein by the Holders thereof from time to time in accordance with the methods of distribution elected by such Holders (to the extent not prohibited by applicable Law) and shall use its reasonable best efforts to cause such Shelf Registration Statement to be declare declared effective under the Securities Act as promptly a registration statement as practicable after the filing thereof.
(a "Demand Registration"c) providing for If any of the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation Securities registered pursuant to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares are to be registered. The Demand Registration shall be for sold in a firm commitment underwritten public 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 price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such Demand Registration 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 of Other Securities.
(bd) Anything in this Agreement to In the contrary notwithstandingevent of a Demand Registration, the Company shall be entitled required to postpone and delay maintain the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements continuous effectiveness of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand applicable Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01Statement:
(i) if a Shelf Registration Statement, for the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;Shelf Period; and
(ii) if a Holder shall not be entitled to request Registration Statement other than a Demand Shelf Registration until after twelve months from the Effective Date,
(iii) no request Statement, for a Demand Registration may be made by a Holder during period of at least 180 days after the pendency of any lock-up effective date thereof or such shorter period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of which all Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be Securities included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of themRegistration Statement have actually been sold.
(e) The Company shall be entitled to include newly issued Ordinary Shares postpone (but not more than once in any 12-month period), for a reasonable period of time not in excess of 60 days, the filing or initial effectiveness of a Registration Statement, or suspend the use of a Shelf Registration Statement (a “Demand Registration; providedSuspension”), however, that if the lead underwriter 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 material financing of the Company or would require the Company to make an Adverse Disclosure. Such certificate shall contain a statement of the reasons for such postponement or suspension and an approximation of the anticipated delay. In the case of any Demand Suspension relating to the suspension of an offering involving effective Shelf Registration Statement, (i) the Company shall, within the 60-day period specified above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that the Selling Holders may resume use thereof in accordance with applicable Law and (ii) the Selling Holders agree to suspend the use of the applicable Prospectus in connection with any sale or purchase, or offer to sell or purchase, Registrable Securities, upon receipt of any such certificate imposing a Demand Suspension until the earlier of the termination of the 60-day period specified above and the date on which the Company complies with clause (i) of this sentence.
(f) Holdings shall have the right to notify the Company that it has determined that the Registration Statement and/or Shelf Registration Statement relating to a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that be abandoned or withdrawn, in which event the Company intends shall promptly abandon or withdraw such Registration Statement and/or Shelf Registration Statement.
(g) The Company shall not be obligated to include in addition to effect any Demand Registration within 90 days after the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price effective date of the Ordinary Shares previous Demand Registration or a previous registration under which Piggyback Registration was available pursuant to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorbSection 4.2. In addition, then the Holders will promptly, so advise the Company and may require, by written notice shall not be obligated to effect any Demand Registration if the Company accompanying such advice, thathas previously received a Demand Registration from another Holder or Holders, to which Demand Registration the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand RegistrationCompany is in the process of giving effect.
Appears in 1 contract
Sources: Securityholders and Registration Rights Agreement (Doral Financial Corp)
Demand Registrations. (a) Each Holder Subject to the terms and conditions hereof, solely during any period that the Public Company is then ineligible under Law to register Registrable Securities on a registration statement on Form S-3 or any successor form thereto (“Form S-3”), or if Public Company is so eligible but has failed to comply with its obligations under Section 6.3, any Demand Shareholders (“Requesting Shareholders”) shall have be entitled to make no more than four (4) written requests of Public Company (each, a “Demand”) for registration under the right 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, Public Company shall, subject to the "Demand Right") during the term terms of this Agreement Agreement, file the registration statement no later than 30 days after receipt of a Demand and shall use its commercially reasonable efforts to require effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which Public Company has been so requested to file register by the Requesting Shareholders for disposition in accordance with the intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which Public Company has been requested to register pursuant to Section 6.1(b), but subject to Section 6.1(g); and
(iii) all shares of Public Company Common Stock which Public Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 6.1, but subject to Section 6.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional shares of Public Company Common Stock, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known, and (iii) the identity of the Requesting Shareholder(s). Within five (5) days after receipt of a Demand, Public Company shall give written notice of such Demand to all other holders of Registrable Securities. The Public Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which Public Company has received a written request for inclusion therein within five (5) days after Public Company’s notice required by this paragraph has been given, provided that if such five (5) day period ends on a day that is not a Business Day, such period shall be deemed to end on the next succeeding Business Day. Each such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) A Demand Registration shall not be deemed to have been effected (i) unless the Demand Registration Statement with respect thereto has become effective and has remained effective for a period of at least one hundred five (105) days or such shorter period in which all Registrable Securities included in such Demand Registration have actually been sold or otherwise disposed of thereunder (provided, that such period shall be extended for a period of time equal to the period the holders of Registrable Securities refrain from selling any securities included in such registration statement at the request of Public 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 five (105) days after effectiveness, to any stop order, injunction or other order or requirement of the Commission or other Governmental Entity, 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 Public Company and reasonably acceptable to the Requesting Shareholders.
(e) Public Company shall not be obligated to (i) subject to Section 6.1(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 respect of which all or some Demand Shareholders were offered “piggyback” rights pursuant to Section 6.2 (subject to Section 6.2(b)) and at least fifty percent (50%) of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% Securities requested by such Demand Shareholders to be included in such Demand Registration were included, (B) within ninety (90) days of the then outstanding Ordinary Shares completion of any other Demand Registration (including, for the avoidance of doubt, any Underwritten Offering pursuant to any Shelf Registration Statement), (C) within ninety (90) days of the Company). Subject completion of any other Underwritten Offering by Public Company or any shorter period during which Public Company has agreed not to effect a registration or public offering of securities (in each case only to the provisions extent that Public Company has undertaken contractually to the underwriters of subsection such Underwritten Offering not to effect any registration or public offering of securities), (bD) belowif, in Public Company’s reasonable judgment, it is not feasible for Public Company to proceed with the Demand Registration because of the unavailability of audited or other required financial statements of Public Company or any other Person; provided, that Public Company shall use its commercially reasonable efforts to obtain such financial statements as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(bf) Anything in this Agreement to the contrary notwithstanding, the Public Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) postpone (upon written notice to the Company is conducting Demand Shareholders) the filing or about to conduct an underwritten public offering the effectiveness of securities in which the Holder is entitled to join pursuant to Section 3.02 hereofa registration statement for any Demand Registration, (ii) the Company is subject cause any Demand Registration Statement to an existing contractual obligation not to engage in a public offering, be withdrawn and its effectiveness terminated and (iii) suspend the financial statements use of the Company for prospectus forming the fiscal period most recently ended prior to such written request are not yet availablepart of any registration statement, or in each case in the event of a Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period under clause (ivii) of the definition thereof, Public Company shall determine that any such filing deliver to the Demand Shareholders requesting registration a certificate signed by either the chief executive officer or the offering chief financial officer of any Registrable Shares would (x) Public Company certifying that, in the good faith judgment of Public Company, the Board of Directors conditions described in clause (ii) of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving definition of Blackout Period are met. Such certificate shall contain an approximation of the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities anticipated delay. Upon notice by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful Public Company to the interests of the Company and its shareholders. After the expiration Demand Shareholders of any such postponement or delay and without determination, each Demand Shareholder covenants that, subject to Law, it shall keep the fact of any further request from such notice strictly confidential, and, in the case of a Holder, the Company shall effect the filing Blackout Period pursuant to clause (ii)(y) of the relevant 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 Public 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 use its best efforts be earlier terminated in writing by Public Company) and, if so directed in writing by Public Company, will deliver to cause Public Company any copies then in the Demand Shareholder’s possession of the prospectus covering such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to Registrable Securities that was in effect at the effective date time of receipt of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registrationnotice.
(cg) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed If, in connection with a public offering Demand Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) Public Company that, in its (their) good faith opinion, the inclusion of securities all of the Companysecurities sought to be registered in connection with such Demand Registration would adversely affect the success thereof, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the then Public Company shall not be required to file a include in such registration statement if the filing of only such a registration statement, or the transactions contemplated securities as Public Company is advised by such filing, would lead managing underwriter(s) can be sold without such adverse effect as follows and in the good faith judgment following order of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as priority: (i) would materially and adversely affect the price of the Ordinary Shares first, up to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares Securities requested to be registered included in such Demand Registration by the Demand Registration shall be reduced to such number Shareholders, which, in the opinion of such underwritersthe lead managing underwriter(s), can be sold without (i) materially and adversely affecting the price success thereof, pro rata among such Demand Shareholders on the basis of the Ordinary Shares number of such Registrable Securities requested to be offered or included by such Demand Shareholders; (ii) resulting in a greater number second, securities Public Company proposes to sell; and (iii) third, all other securities of Ordinary Shares being registered than the market could absorb. Such Registrable Shares Public Company duly requested to be included in such registration shall be allocated statement, pro rata among all requesting Holders on the basis of the relative number amount of such other securities originally requested to be registered included or such other allocation method determined by each of themPublic Company.
(eh) The Company Any time that a Demand Registration involves an Underwritten Offering, the Requesting Shareholder(s) shall be entitled 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 include newly issued Ordinary Shares in any Demand Registrationthe offering of such Registrable Securities; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the investment banker(s) and manager(s) shall be reasonably acceptable to Public Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is (such as (1) would materially and adversely affect the price of the Ordinary Shares acceptance not to be offered unreasonably withheld, conditioned or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationdelayed).
Appears in 1 contract
Demand Registrations. (a) Each Holder shall have Subject to Section 4.8, at any time and from time to time following the right (Conversion Date, the "Demand Right") during the term of this Agreement to require Investor may request the Company to file use commercially reasonable efforts to effect a registration statement under the Securities Act in respect Registration of all or some part of its Registrable Shares (such Registration being hereinafter referred to as a “Demand Registration”) by filing a Prospectus under the Canadian Securities Laws of the Registrable Shares held jurisdictions selected by the Investor. Any such Holder request shall be made by notice in writing (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of “Demand Registration Request”) to the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding4.1(b), the Company shall be entitled to postpone and delay the filing of include for sale in any Prospectus filed pursuant to a Demand Registration until any securities of the earliest practicable time at which such Company to be sold by the Company for its own account. The Company shall as soon as reasonably practical, and in any event within 30 days of receipt of a Demand Registration can 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 efforts to cause a receipt to be issued for such Prospectus as soon as reasonably effected if practicable. The Company and the Investor shall cooperate in a timely manner in connection with any such distribution and the procedures in Schedule A shall apply.
(b) If the lead underwriter or underwriters in any underwritten Demand Registration advise the Company in writing that the inclusion of all the securities requested to be included in a Demand Registration, including securities offered by the Company for its own account, as applicable, may have an adverse effect on the distribution or sales price of the securities being offered unless the number of such securities is reduced (such reduced offering size, the “Maximum Offering Size”), the Company will include in such Registration, in the following priority, in the aggregate up to the Maximum Offering Size: (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereoffirst, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any all Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration by the Investor, and (ii) second, securities offered by the Company for its own account.
(c) The Company shall not be reduced obliged to such number which, in the opinion of such underwriters, can be sold without effect:
(i) materially and adversely affecting 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 price applicable Canadian Securities Commission for a final Prospectus pursuant to which all of the Ordinary Registrable Shares included in the Demand Registration are to be offered 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 deemed to be effected and provided further that if the Investor withdraws its request 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, or if the Investor withdraws its request during the Suspension Period, the Investor shall not be deemed to have participated in 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 final Prospectus filed by the Company in connection with another Demand Registration.
(d) The Company may postpone the filing of a Prospectus to effect a Demand Registration for the later of (i) a period of not more than 90 days or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis duration of the relative number period that the Company is, in good 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 securities originally requested National Instrument 51-102 – Continuous Disclosure Obligations (each, a “Suspension Period”), upon written notice to the Investor, in the event the Independent Directors reasonably determine in good faith that either: (A) the filing of that Prospectus for the Demand Registration would materially impede the ability of the Company to consummate a bona fide transaction (including a financing, an acquisition, a disposition, a restructuring or 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 Company or its Subsidiaries or Investees, the disclosure of which the Company believes would be registered 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 them.
(eA) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; and (B), a “Valid Business Reason”) provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that (i) the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by shall give written notice to the Company accompanying such advice, that, Investor of the time at which it determines the Valid Business Reason to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.no longer exist; and
Appears in 1 contract
Sources: Investor Rights and Strategic Opportunities Agreement
Demand Registrations. (a) Each Holder shall have At any time after the right earlier of (i) the "Demand Right") during the term of this Agreement to require the Company to file a registration statement under the Securities Act in respect of all or some second anniversary of the Registrable Shares held by such Holder date hereof or (but not less than ii) the date that is one hundred and eighty (180) days after the closing of a number firm commitment underwriting of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares any of the Company). Subject 's securities, a Majority Interest of the Investors may notify the Company that they intend to offer or cause to be offered for public sale all or any portion of their Registrable Securities in the manner specified in such request, provided that in the case of a request pursuant to clause (ii) such registration may not become effective prior to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days date which is six months after the Company receives a written request from such Holder demanding that effective date of the Company so register the number Company's initial registration statement. Upon receipt of Registrable Shares specified in such request, the Company shall file with promptly deliver notice of such request to all Persons holding Registrable Securities who shall then have thirty (30) days to notify the Commission and thereafter use its best efforts to cause Company in writing of their desire to be declare effective promptly a included in such registration. If the request for registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through contemplates an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone state such in the written notice and delay in such event the filing right of any Demand Registration until the earliest practicable time at which Person to participate in such Demand Registration can registration shall be reasonably effected if (i) the Company is conducting or about to conduct an conditioned upon their participation in such underwritten public offering and the inclusion of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any their Registrable Shares would (x) Securities in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated underwritten public offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the extent provided herein. The Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall will use its reasonable best efforts to cause expeditiously effect the registration of all Registrable Securities whose holders request participation in such registration under the Securities Act and to qualify such Registrable Securities for sale under any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall havestate blue sky law; provided, prior to the effective date of such Demand Registrationhowever, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) that the Company shall not be required to file effect registration -------- ------- pursuant to a registration statement request under this Section 2 more than three (3) times for the holders of the Registrable Securities as a group. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within 180 one hundred and eighty (180) days of after the effective date of a prior registration statement filed as by the Company covering a result Qualified Public Offering. The Company may postpone the filing or the effectiveness of a request any registration statement pursuant to this Section 2 for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder reasonable time period, provided that such postponements shall not be entitled to request a Demand Registration until after exceed ninety (90) days in the aggregate during any twelve months from the Effective Date,
(iii12) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Companymonth period, except with the consent of the underwriters controlling the applicable lock-up agreement
if (ivi) the Company shall not be required to file has been advised by legal counsel that such filing or effectiveness would require disclosure of a registration statement if the filing of such a registration statementmaterial financing, acquisition or the transactions contemplated by such filingother corporate transaction, would in the good faith judgment of and the Board of Directors of the Company be contrary to applicable rules or law;
(v) determines in good faith that such disclosure is not in the best interests of the Company shall not be required to file a registration statement if the filing of such registration statement, and its stockholders or the transactions contemplated by such fling, would in the good faith judgment of (ii) the Board of Directors of the Company result determines in good faith that there is a breach valid business purpose or reason for delaying filing or effectiveness. A registration will not count as a requested registration under this Section 2(a) until the registration statement relating to such registration has been declared effective by the Commission at the request of the Company's licenseinitiating holders; and
(vi) provided, -------- however, that if a majority in interest of the participating holders of ------- Registrable Securities shall request, in writing, that the Company shall not be required to file withdraw a registration statement if the filing which has been filed under this Section 2(a) but not yet been declared effective, a majority in interest of such holders may thereafter request the Company to reinstate such Registration Statement, if permitted under the Securities Act, or to file another registration statement, or in accordance with the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto)procedures set forth herein.
(db) Notwithstanding anything contained in this Section 3.01the above, if a requested registration involves an underwritten public offering and the lead managing underwriter of an such offering involving a Demand Registration advises the Holders that have requested such registration determines in good faith that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares securities sought to be offered or (ii) result in a greater number of Ordinary Shares being offered than the should be limited due to market could reasonably absorbconditions, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares securities to be included in such registration underwritten public offering shall be allocated pro rata among all requesting Holders on reduced to a number deemed satisfactory by such managing underwriter, provided that the basis of shares to be -------- excluded shall be determined in the relative number of following sequence: (i) first, securities originally requested held by any other Persons (other than the Investors holding Registrable Securities) not having registration rights or having contractual, incidental "piggy back" right to include such securities in the registration statement, (ii) second, shares sought to be registered by the Company, (iii) third, Registrable Securities of holders who did not make the original request for registration, and (iv) fourth, Registrable Securities of holders who requested such registration pursuant to Section 2(a), it being understood that no shares shall be registered for the account of the Company or any shareholder other than the Investors unless all Registrable Securities for which Investors have requested registration have been registered. If there is a reduction of the number of Registrable Securities pursuant to clauses (i), (iii) or (iv), such reduction shall be made on a pro rata basis (based upon the aggregate number of shares of Common Stock or Registrable Securities held by the holders in each of themtranche and subject to the priorities set forth in the preceding sentence).
(ec) With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, the managing underwriter shall be chosen by the Investors holding not less than a Majority Interest of the Registrable Securities to be sold in such offering, subject to the Company's consent, which such consent shall not be unreasonably withheld. The Company shall be entitled may not cause any other registration of securities for sale for its own account (other than a registration effected solely to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of implement an offering involving employee benefit plan or a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends transaction to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price which Rule 145 of the Ordinary Shares Securities Act is applicable) to become effective within one hundred eighty (180) days following the effective date of any registration required pursuant to this Section 2 or such lesser period as may be offered or (ii) result in a greater number of Ordinary Shares being offered than consented to by the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationmanaging underwriter.
Appears in 1 contract
Demand Registrations. (a) Each Holder shall have At any time after the right Closing, the holders of at least 20% of the Warrant Shares outstanding at the time (equitably adjusted to reflect stock splits, stock dividends, combinations or similar events and adjustments pursuant to Paragraph 5 of the "Demand Right"Warrants) during the term of this Agreement to require the Company to file a may request registration statement under the Securities Act in respect of 1933, as amended (the "Securities Act"), of all or some part of their Warrant Shares on Form S-1 or any other form available for the registration of the Registrable Warrant Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company"Demand Registrations"). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 Within 10 days after the Company receives a written request from such Holder demanding that the Company so register the number receipt of Registrable Shares specified in any such request, the Company shall file with the Commission and thereafter use its best efforts give written notice of such request to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount other holders of the Registrable Warrant Shares and shall, subject to be registered. The Demand Registration shall be the provisions of Section 2(c) hereof, include in such registration all Warrant Shares with respect to which the Company has received written requests for a firm commitment underwritten public offeringinclusion therein within 30 days after the receipt of the Company's notice.
(b) Anything in this Agreement Subject to the contrary notwithstandingprovisions 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 be entitled to postpone and delay the filing of any Demand pay all Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities Expenses in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere connection with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from registration initiated as a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall whether or not constitute a Demand Registrationconsummated.
(c) Notwithstanding anything contained In the event that the managing underwriters of the requested Demand Registration advise the Company in this Section 3.01:
(i) writing that in their judgment in order to effect an orderly public distribution the number of Warrant Shares proposed to be included in any such Demand Registration must be limited, the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed include in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then only the number of Registrable Warrant Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting in an orderly public distribution, such limitation to be imposed pro rata among the price holders of the Ordinary Warrant Shares who are participating in such registration on the basis of the amount of such securities initially proposed to be offered registered by 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 (ii) resulting in and was able to include a greater number minimum of Ordinary 66-2/3% of the shares of Warrant Shares being registered than the market could absorb. Such Registrable 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 Registration might reasonably be expected to have an adverse effect on any proposal or plan by the Company to engage in any acquisition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or similar transaction; provided, however, that in such event, the holders of the Warrant Shares initiating the request for such Demand Registration shall be allocated pro rata among all requesting Holders on the basis entitled to withdraw such request and, if such request is withdrawn, such Demand Registration shall not count as one of the relative number permitted Demand Registrations. If the Company elects to postpone the filing or effectiveness of securities originally requested to be registered by a Demand Registration, it shall promptly notify each member of themthe Lender Group. In any event, the Company shall pay all Registration Expenses in connection with any registration initiated as a Demand Registration.
(e) The Company shall be entitled to include newly issued Ordinary holders of a majority of the Warrant Shares participating in any Demand Registration; providedRegistration shall have the right to select the investment banker(s) and manager(s) to administer the offering, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition subject to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to Company's approval, which shall not be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationunreasonably withheld.
Appears in 1 contract
Sources: Registration Agreement (SPX Corp)
Demand Registrations. (a) Each Holder shall have the right (the "Demand Right") during the term of this Agreement Any Shareholder may from time to require time make a written request to the Company to file a registration statement under the Securities Act in respect for Registration of all or some part of the outstanding Registrable Shares Securities held by such Holder (but not less than a Shareholder and any of its Affiliates; provided, that the number of Registrable Shares that Securities requested to be so Registered represents at least 2.65% one per cent. (1%) of all issued and outstanding Shares. Notwithstanding the preceding sentence, in the event that Orascom makes a written request to the Company pursuant to this Section 2.1(a) for Registration of all or part of the then outstanding Ordinary Registrable Securities held by it or any of its Affiliates, the number of such Registrable Securities requested to be so Registered by Orascom must represent at least five per cent (5%) of all issued and outstanding Shares at such time. A Registration that is undertaken by the Company in response to a valid request made by a Shareholder pursuant to this Section 2.1 shall be referred to herein as a “Demand Registration.” Each such request shall specify the class and the aggregate amount and class of Registrable Securities to be Registered and the Company)intended methods of disposition and distribution thereof. Subject to the provisions of subsection (b) belowThe Company shall file, as promptly as practicablepracticable (and in any event, but in no event later than 45 days after the Company receives within sixty (60) days) following receipt of a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly for a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file , a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior Statement relating to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its reasonable best efforts to cause any such Demand Registration Statement promptly to be declared effective under the Securities Act, the “blue sky” laws of such jurisdictions as promptly the Shareholder or underwriter, if any, reasonably request, or any other Law, as practicable unless applicable, and to cause such Holder shall have, prior Registration Statement to remain effective until the later of (i) the date all Registrable Securities have been sold or (ii) nine (9) months after the effective date of such Registration Statement.
(b) Each Shareholder other than Orascom may make an unlimited number of requests for a Demand Registration pursuant to Section 2.1(a). Orascom may make one request for a Demand Registration pursuant to Section 2.1(a) at any time during a three-hundred sixty-five (365) day period and an additional request for a Demand Registration pursuant to Section 2.1(a) at any time during that same three-hundred sixty-five (365) day period with the approval of HTIHL, such approval not to be unreasonably withheld. Unless HTIHL has requested or has elected to participate in a Demand Registration, withdrawn Orascom shall have no right to make a request for or to participate in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Registration at any time when any amount remains payable by it under the Promissory Note or by the Parent under the terms of the Parent Guarantee. Notwithstanding anything contained in this Section 3.01:
(i) the above, the Company shall not be required to file a registration statement within 180 days of Registration Statement for a Demand Registration at any time during the one hundred eighty (180) day period following the effective date of another such Demand Registration Statement.
(c) Any Shareholder and/or its Affiliates may withdraw their Registrable Securities from a Demand Registration at any time prior registration statement filed as a result to the effectiveness of the applicable Registration Statement. Upon receipt of a written notice from a Shareholder to such effect, the Company shall cease all efforts to secure Registration of such Registrable Securities.
(d) Promptly upon receipt of any request for a Demand Registration by pursuant to Section 2.1(a) (but in no event more than ten (10) Business Days thereafter), the Company shall deliver a Holder or written notice (a “Demand Notice”) of any such Registration request to all other Holders of Registrable Securities, and the Company shall include in such Demand Registration all such Registrable Securities with respect to which the Company has received written requests for inclusion therein from such Holders within 180 twenty-one (21) days after the date that the Demand Notice has been delivered. All requests made pursuant to this Section 2.l(d) shall specify the class and aggregate amount of Registrable Securities to be registered and the effective date intended method of a prior registration statement registering Ordinary Shares;distribution of such securities.
(iie) If a Holder shall not be entitled to request Shareholder that has requested a Demand Registration until after twelve months from so elects, the Effective Date,
(iii) no request for offering of Registrable Securities pursuant to such Demand Registration shall be in the form of an Underwritten Offering. If any offering pursuant to a Demand Registration may involves an Underwritten Offering, such Shareholder shall have the right to select the underwriter or underwriters to administer the offering; provided, that such underwriter or underwriters shall be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of reasonably acceptable to the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(df) Notwithstanding anything contained If at any time the managing underwriter or underwriters (the “Managing Underwriter”) of a proposed Underwritten Offering of a class of Registrable Securities included in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises (or in the case of a Demand Registration not being underwritten, the Shareholder requesting such Demand Registration) informs the Holders that have requested of such registration that class of Registrable Securities in writing that, in its opinion, the total number of Registrable Shames that Company Securities of such class proposed to be included in such Demand Registration exceeds the Holders intend number which can be sold in (or during the time of) such offering without being likely to include is such as (i) would materially and adversely affect have a significant adverse effect on the price price, timing or distribution of the Ordinary Shares to be class of securities offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorbfor the class of securities offered, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to Securities of such number whichclass that, in the opinion of such underwritersManaging Underwriter (or, in the case of a Demand Registration which is not underwritten, the Shareholder requesting such Demand Registration), can be sold included without having such an adverse effect shall be allocated as follows:
(i) materially and adversely affecting first, pro rata among the price Holders which have requested participation in the Demand Registration (based, for each such Holder, on the percentage derived by dividing (i) the number of the Ordinary Shares Registrable Securities of such class which such Holder has requested to be offered or include in such Demand Registration by (ii) resulting in a greater the aggregate number of Ordinary Shares being registered than Registrable Securities of such class which all such Holders have requested to include); and
(ii) second, and only if all the market could absorb. Such Registrable Shares to be included securities referenced in such registration shall be allocated clause (i) have been included, pro rata among all requesting Holders any other Persons contractually entitled to participate in such Demand Registration (based, for each such Person, on the basis of percentage derived by dividing (i) the relative number of securities originally Registrable Securities of such class which such Person has requested to be registered include in such Demand Registration by each (ii) the aggregate number of themRegistrable Securities of such class which all such Persons have requested to include).
(eg) The If the filing, initial effectiveness, publication or continued use of a Registration Statement in respect of a Demand Registration at any time would require the Company shall be entitled to include newly issued Ordinary Shares in any make an Adverse Disclosure, the Company may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement (a “Demand RegistrationSuspension”); provided, however, that if the lead underwriter of an offering involving Company shall not be permitted to exercise a Demand Registration advises Suspension (A) more than once during any six-month period, (B) for a period exceeding thirty (30) days on any one occasion or (C) for a period exceeding forty-five (45) days in any twelve-month period. In the case of a Demand Suspension, the Holders agree to suspend, immediately upon their receipt of the notice referred to above, use of the prospectus relating to such Demand Registration in connection with any sale or purchase, or offer to sell or purchase, Registrable Securities. The Company shall immediately notify the Holders upon termination of any Demand Suspension, and amend or supplement the related prospectus, if necessary, so it does not contain any untrue statement or omission and furnish to the Holders such number of copies of such prospectus as so amended or supplemented as the Holders may reasonably request. The Company represents that, as of the date hereof, it has no knowledge of any circumstance that have requested would reasonably be expected to cause it to exercise its rights under this Section 2.1(g).
(h) Any Shareholder may make a written request to the Company to initiate a public offering in any Alternative Listing Jurisdiction of all or part of the outstanding Registrable Securities held by such registration Shareholder and any of its Affiliates; provided, that the number of Ordinary Shares Registrable Securities requested to be so offered in such a public offering in any Alternative Listing Jurisdiction represents at least one per cent. (1%) of all issued and outstanding Shares. Notwithstanding the preceding sentence, in the event that Orascom makes a written request to the Company intends pursuant to include this Section 2.1(h) to initiate a public offering in addition to any Alternative Listing Jurisdiction of all or part of the total outstanding Registrable Securities held by it or any of its Affiliates, the number of such Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares Securities requested to be so offered or in such a public offering in any Alternative Listing Jurisdiction by Orascom must represent at least five per cent (ii5%) result in of all issued and outstanding Shares at such time. If a greater number of Ordinary Shares being offered than the market could reasonably absorbShareholder proposes to initiate such an offering, then the Holders it will promptly, so advise the Company and may require, by give written notice to the Company accompanying specifying the class and aggregate amount of Registrable Securities to be offered, the proposed method of disposition, the proposed exchange(s) on which such adviceRegistrable Securities will be listed (if any) and, thatif applicable, the proposed filings or registrations under any applicable securities laws. Upon receipt of such notice, the Company shall take all necessary action to cause the extent Company to (i) conduct such an offering of such Registrable Securities, (ii) list such Registrable Securities on such exchange(s), and (iii) comply with all applicable securities laws, including, without limitation, providing such access to records, assistance and information as may be required to enable the production of a prospectus or offering circular and all other documentation reasonable required by the underwriters, and causing the Company to give such representations and warranties and to enter into all underwriting or placement agent agreements, covenants and indemnities with the underwriters of such offering as are necessary to meet effect such limitationoffering, newly issued Ordinary Shares list the Registrable Securities on such exchange(s) and comply with all applicable securities laws. Each request by a Shareholder pursuant to this Section 2.1(h) shall be excluded from such deemed to be a request for a Demand Registration. To the fullest extent possible under applicable Law, with respect to any offering initiated pursuant to a request under this Section 2.1(h), (y) Holders of Registrable Securities shall have such rights as against the Company and the underwriter(s) equivalent to, and providing benefits substantially similar to, the rights the Holders would enjoy in respect of a Demand Registration hereunder, and (z) such offering shall be conducted and the Company shall be under the same obligations as though such offering were a Demand Registration (and, in such context, the terms “Registration” and “Register” shall mean the publication of the relevant Registration Statement or filing of such Registration Statement with the relevant regulatory authority, as the case may be, in accordance with the applicable Law of such Alternative Listing Jurisdiction).
Appears in 1 contract
Sources: Registration Rights Agreement (Hutchison Whampoa LTD /Wav)
Demand Registrations. (a) Each Holder shall have After the right expiry of a 180-day delay from the date hereof, the Investor may request the Issuer to use commercially reasonable efforts to effect a Registration of all or part of its Registrable Shares (the "such Registration being hereinafter referred to as a “Demand Right"Registration”) during the term of this Agreement to require the Company to file by filing a prospectus under applicable Canadian Securities Acts and/or a registration statement under the U.S. Securities Act (including, if eligible, a shelf prospectus under National Instrument 44-102 – Shelf Distributions and/or a shelf registration statement under Rule 415 of the U.S. Securities Act). Any such request shall be made by notice in respect writing (a “Demand Registration Request”) to the Issuer. The Issuer shall as soon as practical, and in any event within 45 days, in the case of a long form prospectus to be filed in Canada or a registration statement to be filed on Form S-1 in the United States, and 10 days, in the case of a short form prospectus or a prospectus supplement to be filed in Canada or a registration statement to be filed on Form S-3 in the United States, of receipt of a Demand Registration Request, file a prospectus and/or a registration statement covering all or some of the Registrable Shares held that the Investor requested to be qualified and/or registered and use its commercially reasonable efforts to cause (i) a receipt to be issued by the relevant Canadian Securities Commissions as soon as practicable and/or (ii) such Holder registration statement to become effective as soon as practicable.
(but b) The Issuer shall not less be obliged to effect:
(i) more than an aggregate of two Demand Registrations in any one 12-month period (provided, however, that a Registration shall not be deemed “effected” for purposes of this section until such time as the applicable final prospectus has been receipted by the relevant Canadian Securities Commissions and the applicable registration statement has been declared effective by the SEC);
(ii) a Demand Registration in the event the Issuer determines in good faith that either (A) the effect of the filing of a prospectus or registration statement or continuing with the Demand Registration could impede the ability of Issuer to consummate a significant transaction (including a financing, an acquisition, a restructuring or 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 Issuer or its subsidiaries (1) the disclosure of which the Issuer believes would be materially adverse to the Issuer and its subsidiaries, taken as a whole or (2) where the Issuer has a bona fide business purpose for keeping it confidential; in which case the Issuer’s obligations under this Section 4.2 shall be deferred for a period of not more than 90 days from the date of receipt of the Demand Registration Request of the Investor, provided that the Issuer shall not be permitted to defer the filing of a prospectus or a registration statement under this Section 4.2 more than two times in any 12-month period;
(iii) a Demand Registration in respect of a number of Registrable Shares that represents at least 2.65% is expected to result in gross proceeds of less than $10 million; or
(iv) a Demand Registration before the then outstanding Ordinary Shares of 90th day following the Company). Subject date on which (A) a receipt was issued to the provisions of subsection Issuer with respect to any final prospectus filed by the Issuer or (bB) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for filed by the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringIssuer became effective.
(bc) Anything in this Agreement The Investor may request the Issuer to the contrary notwithstandinguse commercially reasonable efforts to file and obtain a receipt for a shelf prospectus or effect a shelf registration statement, the Company shall be entitled to postpone and delay the filing which prospectus or registration statement contemplates sales or distributions of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereofRegistrable Shares, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine provided that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for , unless accompanied by a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto)Request.
(d) Notwithstanding anything contained in this Section 3.01, if the The lead underwriter of an or underwriters for any offering involving in connection with a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in selected by the opinion of such underwriters, can be sold without (i) materially Investor and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on reasonably acceptable to the basis of the relative number of securities originally requested to be registered by each of themIssuer.
(e) The Company Issuer shall be entitled to include newly issued Ordinary Shares for sale in any Demand Registration; provided, however, that if the lead underwriter of an offering involving prospectus or registration statement filed pursuant to a Demand Registration advises any securities of the Holders that have requested such registration Issuer to be sold by the Issuer for its own account unless the underwriters advise the Issuer that the number aggregate amount of Ordinary Shares that securities requested to be included in such offering is sufficiently large to have a material adverse effect on the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the distribution or sales price of the Ordinary Registrable Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than such offering in which case the market could reasonably absorb, then the Holders Issuer will promptly, so advise the Company and may require, by written notice to the Company accompanying include in such advice, thatDemand Registration, to the extent necessary of the amount that the underwriter believes may be sold without causing such material adverse effect, first the Registrable Shares requested to meet such limitationbe included by the Investor and second, newly issued Ordinary Shares shall be excluded from such Demand Registrationsecurities offered by the Issuer for its own account.
Appears in 1 contract
Sources: Investor Rights Agreement (Fire & Flower Holdings Corp.)
Demand Registrations. Upon the request of (a) Each Holder shall have FPSH, (b) Mr. Romo or (c) the right holders of a majority of the Warrants and shares ▇▇ ▇▇▇▇▇n Stock, taken together, held by NML and its PS Permitted Transferees at such time (each of the parties referred to in clauses (a), (b) and (c), an "Initiating Party," and the party and/or parties described in clause (c), the "Demand RightNML Initiating Party") during the term of this Agreement to require ), the Company shall use its reasonable best efforts to file a registration statement register under the Securities Act Registrable Securities held by the Initiating Party (including, at the election of such Initiating Party, in respect an underwritten offering) and any other Stockholders participating in such Demand Registration (provided, however, that the aggregate expected market value of all or some of the such Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified Securities included in such requestregistration is greater than or equal to $50 million, and provided, further, that if shares of Common Stock are not publicly traded, the Company aggregate expected market value of all Common Stock included in such registration is greater than or equal to $100 million) and bear all expenses in connection with such offering in a manner consistent with Section 3.1.3 and shall file with the Commission and thereafter use its best efforts enter into such other agreements in furtherance thereof (each such registration pursuant to cause to be declare effective promptly a registration statement (this Section 3.1.2, a "Demand Registration"), and the Company shall provide customary indemnifications in such instances (in a manner consistent with the indemnification provision of this Article III) providing for to the registrations Initiating Party, other Stockholders included in such registration and any such underwriters, provided, however, that no offering contemplated hereby shall be completed prior to the three-year anniversary of all Registrable Shares as such Holder the Effective Date and provided further that NML and its PS Permitted Transferees shall not have demanded be registered. The Company may satisfy its obligation the right to file initiate a Demand Registration through until after the occurrence of an automatic shelf registration statement on form F-3 within IPO. FPSH shall have the meaning right to initiate up to an aggregate of Rule 405 under the Securities Act. All requests made six Demand Registrations pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding3.1.2; provided, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereofhowever, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required obligated to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for effect a Demand Registration by a Holder or within 180 days nine months of the
1. Together, the effective date Romo Persons shall have the right to initiate an aggregate of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled four Demand Registrations pursuant to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Companythis Section 3.1.2; provided, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) however, that the Company shall not be required obligated to file effect a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment Demand Registration within nine months of the Board effectiveness of Directors another registration under this Section 3.1. The NML Initiating Party shall have the right to initiate an aggregate of the Company be contrary to applicable rules or law;
(v) two Demand Registrations; provided, however, that the Company shall not be required obligated to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving effect a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price within nine months of the Ordinary Shares effectiveness of another registration under this Section 3.1. 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 any Demand Registration requested by FPSH is in the form of an underwritten offering, FPSH shall designate the underwriter or underwriters to be offered or (ii) result utilized in a greater number of Ordinary Shares being offered than the market could reasonably absorbconnection with such offering, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead ARG Trust or the Rights Holder participates in the offering, such underwriter or underwriters shall be reasonably acceptable to Mr. Romo. If the Demand Registration requested by a Romo Person is in ▇▇▇ ▇▇▇m of an offering involving a underwritten offering, Mr. Romo shal▇ ▇▇signate an underwriter or underwriters to be utilize▇ ▇▇ ▇▇▇nection with such offering, provided, however, that if FPSH participates in the offering, such underwriter or underwriters shall be reasonably acceptable to FPSH. If the Demand Registration advises requested by the Holders that have requested such registration that NML Initiating Party is in the form of an underwritten offering, the Stockholder proposing to sell the largest number of Ordinary Shares shares of Common Stock shall designate an underwriter or underwriters to be utilized in connection with such offering, provided, however, that the Company intends to include in addition such underwriter or underwriters shall be reasonably acceptable to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand RegistrationCompany.
Appears in 1 contract
Demand Registrations. (a) At any time or times, but in any event subject to the limitations set forth in Section 3(d), after ▇▇▇▇▇ becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder may request ▇▇▇▇▇, in writing, to effect the registration of Registrable Shares on Form S-3 (or such successor form) at ▇▇▇▇▇'▇ expense. Upon receipt of any such request, ▇▇▇▇▇ shall promptly give written notice of such proposed registration to all Stockholders. Each Holder such Stockholder shall have the right right, by giving written notice to ▇▇▇▇▇ within thirty (the "Demand Right"30) during the term days after ▇▇▇▇▇ provides its notice, to elect to have included in such registration such of this Agreement to require the Company to file a registration statement under the Securities Act in respect of all or some of the its Registrable Shares held by as such Holder (but not less than a number Stockholder may request in such notice of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company)election. Subject to the provisions of subsection (b) belowThereupon, ▇▇▇▇▇ shall, as promptly expeditiously as practicablepossible, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a effect the registration statement on Form S-3 (a "Demand Registration"or such successor form) providing for the registrations of all Registrable Shares as such Holder which ▇▇▇▇▇ has been requested to register. Any offering of Registrable Shares under the Registration Statement on Form S-3 (or successor form) shall have demanded not be registeredunderwritten. The Company may satisfy its obligation If at any time after thirteen months following the date first set forth above, ▇▇▇▇▇ shall be ineligible to file a Demand Registration through an automatic shelf registration statement Statement on Form S-3 (or any successor form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant relating to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstandingsecondary offerings), the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and ▇▇▇▇▇ shall use its best efforts to cause effect the requested registration on any available registration form promulgated pursuant to the Securities Act.
(b) If at the time of any request to register Registrable Shares pursuant to this Section 3, ▇▇▇▇▇ is engaged or has fixed plans to engage within sixty (60) days of the time of the request in a registered public offering (by filing a Registration Statement with the Commission) or is engaged in any other activity which, in the good faith determination of ▇▇▇▇▇'▇ Board of Directors, would be adversely affected by the requested registration to the material detriment of ▇▇▇▇▇, then ▇▇▇▇▇ may at its option direct that such Demand Registration request be delayed (i) in the case of a registered public offering, for such period as the underwriters require with respect to be declared effective any other ▇▇▇▇▇ shareholder holding as promptly as practicable unless such Holder shall havemany or more shares of Common Stock, prior not to exceed six (6) months from the effective date of such Demand Registrationoffering or (ii) in the case of another material activity, withdrawn a period not exceed six (6) months from the date of commencement of such activity, as the case may be, such right to delay a request to be exercised by ▇▇▇▇▇ not more than once in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registrationany one-year period.
(c) Notwithstanding anything contained in this Section 3.01:
3(a), (i) ▇▇▇▇▇ need not include any Registrable Shares owned by any Stockholder in any Registration Statement provided for under this Section if in the Company opinion of counsel for ▇▇▇▇▇ reasonably satisfactory to the Stockholder, registration of such shares under the Securities Act is not necessary for the Stockholder to dispose of all of such shares in the public market in compliance with the Securities Act; provided that, in such case, the opinion of such counsel shall be in writing addressed to the Stockholder and shall be rendered within twenty (20) days after ▇▇▇▇▇ receives the Stockholder's request for registration or the Stockholder's notice of election to have included in a registration some or all of the Stockholder's Registrable Shares; and (ii) ▇▇▇▇▇ shall not be required to file effect the registration under this Agreement of a registration statement within 180 days number of Registerable Shares which is less than twenty-five percent (25%) of the effective date total number of a prior registration statement filed as a result of a request for a Demand Registration Shares issued by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;▇▇▇▇▇.
(iid) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company ▇▇▇▇▇ shall not be required to file a registration statement if the filing of such a registration statementeffect more than two registrations pursuant to paragraph (a) above, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if each such obligation shall be deemed satisfied only when a registration statement covering all of the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that specified in notices received as aforesaid, for sale in accordance with the Holders intend to include is method of disposition specified by such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorbholders, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationhave become effective.
Appears in 1 contract
Sources: Registration Rights Agreement (Carey International Inc)
Demand Registrations. (a) Each Holder shall have Subject to Section 3.7, at any time and from time to time following the right (date that is 18 months following the "Demand Right") during Initial Nomination Date, the term Group Representative, on behalf of this Agreement to require the Investors, may request the Company to file use commercially reasonable efforts to effect a registration statement under the Securities Act in respect Registration of all or some part of the Investors’ Registrable Shares held (such Registration being hereinafter referred to as a “Demand Registration”) by such Holder (but not less than filing a number of Registrable Shares that represents at least 2.65% Prospectus under the Canadian Securities Laws of the then outstanding Ordinary Shares jurisdictions selected by the Group Representative, on behalf of the Investors. Any such request shall be made by notice in writing (a “Demand Registration Request”) to the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding3.1(b), the Company shall be entitled to postpone and delay include for sale in any Prospectus filed pursuant to a Demand Registration any securities of the filing Company to be sold by the Company for its own account, or for the account of any other securityholder. The Company shall as soon as reasonably practical, and in any event within 30 days of receipt of a Demand Registration until Request, file a Prospectus under the earliest practicable time at which Canadian Securities Laws of the jurisdictions selected by the Group Representative covering all of the Registrable Shares that the Group Representative, on behalf of the Investors, requested to be registered and, as applicable, any securities offered by the Company for its own account, or for the account of any other securityholder, and use its commercially reasonable efforts to cause a receipt to be issued for such Prospectus as soon as reasonably practicable. The Company, the Group Representative and the Investors shall cooperate in a timely manner in connection with any such distribution and the procedures in Schedule A shall apply.
(b) If the lead underwriter or underwriters in any underwritten Demand Registration can advise the Company and/or the Group Representative in writing that the inclusion of all the securities requested to be reasonably effected if included in a Demand Registration, including securities offered by the Company for its own account, or for the account of any other securityholder, as applicable, may have an adverse effect on the distribution or sales price of the securities being offered unless the number of such securities is reduced (such reduced offering size, the “Maximum Offering Size”), the Company will include in such Registration, in the following priority, in the aggregate up to the Maximum Offering Size: (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereoffirst, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any all Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number whichby the Group Representative, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.and
Appears in 1 contract
Sources: Investor Rights Agreement
Demand Registrations. (a) Each Holder If on or after the Effective Date, the Company shall have receive a notice from a Stockholder that the right Company effect a Demand Registration (a “Demand Notice”), for all or any portion of the "Registrable Securities specified in such Demand Right") during Notice, specifying the term intended method of disposition thereof, then the Company shall use its reasonable best efforts to effect within 60 days of such Demand Notice, subject to the restrictions of this Agreement to require Section 2.1, the Company to file a registration statement under the Securities Act in respect of all or some of the Registrable Shares held by such Holder Securities for which the Stockholder has requested registration under this Section 2.1, all to the extent necessary to permit the disposition (but not less than a number of Registrable Shares that represents at least 2.65% in accordance with the intended methods thereof as specified in the Demand Notice) of the then outstanding Ordinary Shares of the Company). Registrable Securities so to be registered.
(b) Subject to the provisions of subsection this Section 2.1, each Stockholder shall be entitled to request an aggregate of two Demand Registrations before the expiration of the Lockup Restrictions and three Demand Registrations thereafter.
(bc) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such requestSubject to Section 2.1(f), the Company shall file the registration statement in respect of a Demand Registration as soon as practicable and, in any event, within 45 days after receiving a Demand Notice (the “Required Filing Date”) on Form S-1 or S-3 or any similar or successor to such forms under the Securities Act, or, if they are not available, any form for which the Company then qualifies, and which form shall be available for the sale of the Registrable Securities in accordance with the Commission intended methods of distribution thereof, and thereafter shall use its reasonable best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration same to be declared effective by the SEC as promptly as practicable unless after such Holder shall havefiling; provided, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) that the Company shall not be required obligated to file effect a registration statement Demand Registration pursuant to Section 2.1(a) (i) within 180 days of after the effective date of a prior registration statement filed as a result of a request for a previous Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
and (ii) a Holder shall not be entitled to request a unless the Demand Registration until after twelve months from the Effective Date,
(iii) no request Notice is for a Demand Registration may be made by a Holder during the pendency number of any lock-up period imposed in connection Registrable Securities with a public offering of securities an expected market value that is equal to at least $5,000,000 as of the Company, except with the consent date of such Demand Notice or is for one hundred percent of Registrable Securities of the underwriters controlling stockholder that initially sent the applicable lock-up agreement
Demand Notice (ivthe “Demanding Stockholder”) that such Stockholder then is permitted to sell under the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto)Lockup Restrictions.
(d) Notwithstanding anything contained With respect to any Demand Registration, subject to the availability of a registration statement on Form S-3, the Company shall, upon written request from a requesting Stockholder, agree to effect a Shelf Registration, and, thereafter, 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.
(e) Upon receipt of any Demand Notice, the Company shall promptly (but in this any event within 10 days) give written notice of such proposed Demand Registration to all other Stockholders, who shall have the right, exercisable by written notice to the Company within 20 days of their receipt of the Company’s notice, to elect to include in such Demand Registration such portion of their Registrable Securities as they may request, so long as such Registrable Securities are proposed to be disposed of in accordance with the method or methods of disposition requested pursuant to Section 3.01, if the lead underwriter of an offering involving 2.1(a). All other Stockholders requesting to have their Registrable Securities included in a Demand Registration advises in accordance with the Holders that have requested such preceding sentence shall be deemed to be a requesting Stockholder for purposes of Section 2.1(b).
(f) The Company may defer the filing (but not the preparation) of a registration that statement required by this Section 2.1 until after the total number of Registrable Shames that the Holders intend to include is such as Required Filing Date (i) would materially and adversely affect for a period not to exceed 90 days, if, at the price of time the Ordinary Shares to be offered Company receives the Demand Notice, there exists a Material Disclosure Event, or (ii) result for a period not to exceed 90 days, if, prior to receiving the Demand Notice, the Company had determined to effect a registered underwritten public offering of Company Common Stock, or securities convertible into or exchangeable for Company Common Stock, for the Company’s account in connection with a material public financing transaction and the Company had taken substantial steps (including selecting a managing underwriter for such offering, if applicable) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement pursuant to this Section 2.1(f) shall be lifted, and the requested registration statement shall be filed forthwith, if, in the case of a deferral pursuant to clause (i) of the preceding sentence, the Material Disclosure Event is publicly disclosed or otherwise ceases to exist, or, in the case of a deferral pursuant to clause (ii) of the preceding sentence, the proposed registration for the Company’s account is abandoned or the filing of a registration statement with respect to any such proposed registration is delayed by more than 30 days from the time of receipt of the applicable Demand Notice. In order to defer the filing of a registration statement pursuant to this Section 2.1(f), the Company shall promptly (but in any event within 10 days), upon determining to seek such deferral, deliver to each requesting Stockholder a certificate signed by an executive officer of the Company stating that the Company is deferring such filing pursuant to this Section 2.1(f), a general statement of the reason for such deferral and an approximation of the anticipated delay. Within 20 days after receiving such certificate, the Demanding Stockholder may withdraw such Demand Notice by giving notice to the Company; if withdrawn, the Demand Notice shall be deemed not to have been made for all purposes of this Agreement and the Company shall pay all expenses of such withdrawn Demand Registration in accordance with Section 2.7. The Company may defer the filing of a particular registration statement pursuant to this Section 2.1(f) only once in any period of 12 consecutive months; provided, that any deferral pursuant to clause (i) of the first sentence of this Section 2.1(f) shall be deemed to be a “Suspension Period” for purposes of Section 2.6 and shall be subject to the limitations and obligations during Suspension Periods set forth in Section 2.6.
(g) No securities to be sold for the account of any Person (including the Company), other than a requesting Stockholder, shall be included in a greater Demand Registration if the managing underwriters (or, in an offering that is not underwritten, a nationally recognized investment bank) shall advise the Company and the requesting Stockholders in writing that the aggregate amount of such securities requested to be included in any offering pursuant to such Demand Registration is sufficiently large to have an adverse effect on the success of any such offering, based on market conditions or otherwise (an “Adverse Effect”). Furthermore, if the managing underwriters (or such investment bank) shall advise the Company and the requesting Stockholders that, even after exclusion of all securities of other Persons pursuant to the immediately preceding sentence, the amount of Registrable Securities proposed to be included in such Demand Registration by requesting Stockholders is sufficiently large to cause an Adverse Effect, the Registrable Securities of the requesting Stockholders to be included in such Demand Registration shall equal the number of Ordinary Shares being offered than shares which the market could reasonably absorb, then requesting Stockholders are so advised can be sold in such offering without an Adverse Effect and such shares shall be allocated pro rata among the requesting Stockholders on the basis of the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares Securities requested to be included in such registration by each such requesting Stockholder; provided, that the Company shall be allocated pro rata among all requesting Holders on the basis not include any Registrable Securities of any executive officer, director or employee of the relative Company (other than the Stockholders) or any of its subsidiaries if the managing underwriters (or such investment bank) shall advise the Company and the requesting Stockholders that the participation of any such persons may have an Adverse Effect; provided, further that if the number of securities originally Registrable Securities owned by the Demanding Stockholder to be included in the Demand Registration is less than 80% of the number requested to be registered so included, the Demanding Stockholder may withdraw such Demand Notice by each giving notice to the Company; if withdrawn, the Demand Notice shall be deemed not to have been made for all purposes of them.
(e) The this Agreement and the Company shall be entitled to include newly issued Ordinary Shares pay all expenses of such withdrawn Demand Registration in any Demand Registrationaccordance with Section 2.7; provided, however, that if the lead underwriter holders of an offering involving a majority of the remaining Registrable Securities covered by such Demand Notice desire to proceed with such Demand Registration, the Company shall proceed forward with such Demand Registration and the Demand Notice shall be deemed to have been made for all purposes of this Agreement by the remaining holders.
(h) Any requesting Stockholder may withdraw such Stockholder’s Registrable Securities from a Demand Registration advises at any time and any Demanding Stockholder shall have the Holders that have requested right to cancel a proposed Demand Registration of Registrable Securities pursuant to this Section 2.1(h). Upon such registration that the number of Ordinary Shares that cancellation, the Company intends shall cease all efforts to include secure registration and such Demand Registration shall not be counted as a Demand Registration under this Agreement for any purpose and the Company shall pay the expenses of such cancelled Demand Registration in addition accordance with Section 2.7.
(i) In any registration requested pursuant to this Section 2.1, the total number Company shall not register securities other than Registrable Securities for sale for the account of Registrable Shares that any Person (including the Holders intend Company), unless permitted to include is such as (1) would materially and adversely affect do so by the price written consent of the Ordinary Shares holders of a majority of the Registrable Securities to be offered or (ii) result sold in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationregistration.
Appears in 1 contract
Sources: Registration Rights Agreement (Cornerstone Therapeutics Inc)
Demand Registrations. (a) Each Holder shall have At any time after the right (date hereof, a Majority Interest of the "Demand Right") during the term of this Agreement to require Investors may notify the Company that they intend to file a registration statement under the Securities Act in respect of offer or cause to be offered for public sale all or some any portion of the their Registrable Shares held by such Holder Securities (but representing offering proceeds aggregating not less than a number of Registrable Shares that represents at least 2.65% of $10 million) in the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares manner specified in such request. Upon receipt of such request, the Company shall file with promptly deliver notice of such request to all Persons holding Registrable Securities who shall then have thirty (30) days to notify the Commission and thereafter use its best efforts to cause Company in writing of their desire to be declare effective promptly a included in such registration. If the request for registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through contemplates an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone state such in the written notice and delay in such event the filing right of any Demand Registration until the earliest practicable time at which Person to participate in such Demand Registration can registration shall be reasonably effected if (i) the Company is conducting or about to conduct an conditioned upon their participation in such underwritten public offering and the inclusion of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any their Registrable Shares would (x) Securities in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated underwritten public offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the extent provided herein. The Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall will use its reasonable best efforts to cause expeditiously effect the registration of all Registrable Securities whose holders request participation in such registration under the Securities Act and to qualify such Registrable Securities for sale under any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall havestate blue sky law; provided, prior to the effective date of such Demand Registrationhowever, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) that the Company shall not be required to file effect registration pursuant to a registration statement within 180 days request under this Section 2 more than two (2) times for the holders of the effective date of a prior registration statement filed Registrable Securities as a result of group. Notwithstanding anything to the contrary contained herein, if the Company receives a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
under this Section 2, then (ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(ivi) the Company shall not be required may advise the requesting Investors, within fifteen (15) days of its receipt of such request, that it intends to file a registration statement if for the primary issuance of securities in an underwritten public offering, and (ii) assuming that the Company files such registration statement within seventy-five (75) days of its receipt of such request, the Company's registration obligations under this Section 2 shall not apply with respect to such request and no additional request may be made under this Section 2 within one hundred eighty (180) days after the effective date of such registration statement. In addition, the Company may postpone the filing of such a registration statement, or the transactions contemplated by effectiveness of any registration statement pursuant to this Section 2 for a reasonable time period, provided that such filing, would postponements shall not exceed one hundred twenty (120) days in the good faith judgment aggregate during any twelve (12) month period, if (i) the Company has been advised by legal counsel that such filing or effectiveness would require disclosure of a material financing, acquisition or other corporate transaction or development, and the Board of Directors of the Company be contrary to applicable rules or law;
(v) determines in good faith that such disclosure is not in the best interests of the Company shall not be required to file a registration statement if the filing of such registration statement, and its stockholders or the transactions contemplated by such fling, would in the good faith judgment of (ii) the Board of Directors of the Company result determines in good faith that there is a breach valid business purpose or reason for delaying filing or effectiveness. A registration will not count as a requested registration under this Section 2(a) until the registration statement relating to such registration has been declared effective by the Commission at the request of the Company's licenseinitiating holders; and
(vi) provided, however, that, if a Majority Interest of the participating holders of Registrable Securities shall request, in writing, that the Company shall not be required to file withdraw a registration statement if which has been filed under this Section 2(a) but not yet been declared effective, a majority in interest of such holders may thereafter request the filing of Company to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto)procedures set forth herein.
(db) Notwithstanding anything contained in this If a requested registration pursuant to Section 3.01, if 2(a) involves an underwritten public offering and the lead managing underwriter of an such offering involving a Demand Registration advises the Holders that have requested such registration determines in good faith that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares securities sought to be offered or (ii) result in a greater number of Ordinary Shares being offered than the should be limited due to market could reasonably absorbconditions, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares securities to be included in such registration underwritten public offering shall be allocated pro rata among all requesting Holders on reduced to a number deemed satisfactory by such managing underwriter, provided that the basis of shares to be excluded shall be determined in the relative number of following sequence: (i) first, securities originally requested held by any other Persons (other than the Investors holding Registrable Securities) not having either registration rights or contractual, incidental "piggy back" rights to include such securities in the registration statement, (ii) second, shares sought to be registered by the Company, and (iii) third, Registrable Securities, it being understood that no shares shall be registered for the account of the Company or any shareholder other than the Investors unless all Registrable Securities for which Investors have requested registration have been registered. If there is a reduction of the number of Registrable Securities pursuant to clauses (i) or (iii), such reduction shall be made on a pro rata basis (based upon the aggregate number of shares of Registrable Securities held by the holders in each of themtranche and subject to the priorities set forth in the preceding sentence).
(ec) With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, the managing underwriter shall be chosen by the Investors holding not less than a Majority Interest of the Registrable Securities to be sold in such offering, subject to the Company's consent, which consent shall not be unreasonably withheld. The Company shall be entitled may not cause any other registration of securities for sale for its own account (other than a registration effected solely to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of implement an offering involving employee benefit plan or a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends transaction to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price which Rule 145 of the Ordinary Shares Securities Act is applicable) to become effective within one hundred eighty (180) days following the effective date of any registration required pursuant to this Section 2 or such lesser period as may be offered or (ii) result in a greater number of Ordinary Shares being offered than consented to by the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationmanaging underwriter.
Appears in 1 contract
Demand Registrations. (a) Each Holder shall have Subject to Section 7.3, at any time following the right eighteen-month anniversary of the Closing (or with respect to a registration that would become effective following such eighteen-month anniversary, following the "Demand Right"seventeen-month anniversary of the Closing or at any time following the occurrence of an event described in Section 6.1(b)), DoCoMo may, on not more than six (6) during separate occasions in the term of this Agreement aggregate, require (i) prior to require the Company Spin-off, AT&T to file a registration statement under the Securities Act in respect of all or some a portion of DoCoMo's Registrable Securities or (ii) following the Spin-off, AT&T Wireless to file a registration statement under the Securities Act in respect of all or a portion of DoCoMo's Registrable Shares held by Securities; PROVIDED, in each case, that such Holder (but not less than a number request involves Registrable Securities having an aggregate Market Value on the date of Registrable Shares that represents delivery of such request of at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject $500 million, by delivering to the provisions of subsection (b) belowIssuer written notice stating that such right is being exercised, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register specifying the number of Registrable Shares specified shares of Current Wireless Tracking Stock or AT&T Wireless Common Stock to be included in such registration (the shares subject to such request, the Company "DEMAND SHARES") and describing the intended method of distribution thereof, which may include an underwritten offering (a "DEMAND REQUEST"). Upon receiving a Demand Request, the Issuer shall file with the Commission and thereafter (i) use its best all reasonable efforts to cause to be declare effective file as promptly as reasonably practicable a registration statement on such form as it may reasonably deem appropriate (PROVIDED that in no event shall the Issuer be obligated to register any securities on a "Demand Registration"shelf" registration statement or otherwise to register securities for offer or sale on a continuous or delayed basis) providing for the registrations registration of the sale of such Demand Shares pursuant to the intended method of distribution (a "DEMAND REGISTRATION") and (ii) after the filing of an initial version of the registration statement, use all Registrable Shares as reasonable efforts to cause such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 to be declared effective under the Securities ActAct as promptly as practicable after the date of filing of such registration statement. All requests made pursuant DoCoMo (including any transferee to this Section 3.01 (awhich DoCoMo shall have transferred registration rights as permitted hereunder) shall specify may not exercise more than one Demand Request in any 7 1/2 month period. In the amount event that a Demand Request is delivered to AT&T prior to the Spin-off, but the Demand Shares are not registered by the time of consummation of the Registrable Shares to be registered. The Spin-off, such Demand Registration Request shall be deemed withdrawn and shall not count for a firm commitment underwritten public offeringthe purposes of determining the number of Demand Registrations to which DoCoMo is entitled hereunder.
(b) Anything in this Agreement to the contrary notwithstanding, the Company Issuer shall be entitled to postpone and delay delay, for reasonable periods of time, but in no event more than an aggregate of 90 days during any 12-month period (a "BLACKOUT PERIOD"), the filing or effectiveness of any Demand Registration until if the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company Issuer shall determine that any such filing or the offering of any Registrable Shares Securities would (xi) in the good faith judgment of the Board of Directors of the CompanyBoard, impede, delay or otherwise interfere with any pending or contemplated financing, material acquisition, corporate reorganization or other similar material transaction involving the CompanyIssuer, including without limitation the Spin-off and the proposed Exchange Offer, (yii) based upon advice from the CompanyIssuer's investment banker or financial advisor, adversely affect any pending or contemplated financing, offering or sale of any class of securities by the Company, Issuer or the Spin-off or the proposed Exchange Offer or (ziii) in the good faith judgment of the Board, require disclosure of material nonpublic non-public information (other than information relating to an event described in clauses (i) or (ii) above) which, if disclosed at such time, would be materially harmful to the best interests of the Company Issuer and its shareholdersstockholders; PROVIDED, HOWEVER, that the Issuer shall give written notice to DoCoMo of its determination to postpone or delay the filing of any Demand Registration; PROVIDED, FURTHER, that except in the case of a registration related to the Spin-off or the Exchange Offer, in the event that the Issuer proposes to register AT&T Wireless Stock, whether or not for sale for its own account, during a Blackout Period, DoCoMo shall have the right to exercise its rights under Section 7.2 of this Agreement with respect to such registration, subject to the limitations contained in this Agreement on the exercise of such rights; and PROVIDED FURTHER that AT&T or AT&T Wireless, as the case may be, shall file such registration statement or post-effective amendment and otherwise continue with such registration as soon as practicable thereafter. After Upon notice by the expiration Issuer to DoCoMo of any such postponement determination, DoCoMo shall keep the fact of any such notice strictly confidential, and during any Blackout Period, promptly halt any offer, sale, trading or delay and without Transfer by it of any further request from a Holder, AT&T Wireless Stock for the Company shall effect the filing duration of the relevant Demand Registration Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Issuer) and shall use its best efforts to cause promptly halt any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall haveuse, prior to publication, dissemination or distribution of the effective date of such Demand Registration, withdrawn each prospectus included therein, and any amendment or supplement thereto by it 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 Issuer) and, if so directed by the Issuer, will deliver to the Issuer any copies then in its initial request, in which case possession of the prospectus covering such withdrawn request shall not constitute a Demand RegistrationRegistrable Securities.
(c) Notwithstanding anything contained In connection with an underwritten offering, if the managing underwriter or co-managing underwriter reasonably and in this Section 3.01:
(i) good faith shall have advised the Company Issuer or DoCoMo that, in its opinion, the number of Demand Shares subject to a Demand Request exceeds the number that can be sold in such offering, the Issuer shall not include in such registration the number of Demand Shares that, in the opinion of such managing underwriter or underwriters, can be required to file a registration statement within 180 days of the effective date of a prior registration statement filed sold in such offering; PROVIDED that if as a result of a request for a Demand Registration by a Holder or within 180 days any reduction pursuant to this paragraph (c) the aggregate Market Value of the effective date of a prior Demand Shares to be so included is less than $500 million, DoCoMo may withdraw such Demand Request with respect to all Demand Shares covered thereby and such registration statement registering Ordinary Shares;
(ii) a Holder shall not be count for the purposes of determining the number of Demand Registrations to which DoCoMo is entitled under Section 7.1(a); PROVIDED, FURTHER, that if pursuant to request a the Demand Registration until after twelve months from Request DoCoMo has given the Effective Date,
Issuer the right to select the managing underwriter (iiireasonably acceptable to DoCoMo) no request for a Demand Registration may be made and the managing underwriter so selected by a Holder during the pendency of any lock-up period imposed Issuer makes the determination that results in connection with a public offering of securities the reduction pursuant to this paragraph (c) such that the aggregate Market Value of the CompanyDemand Shares to be so included is less than $500 million, except then DoCoMo may elect to proceed with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company registration, and such registration shall not be required count for the purposes of determining the number of Demand Registrations to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related theretowhich DoCoMo is entitled under Section 7.1(a).
(d) Notwithstanding anything contained in this Section 3.01In connection with any underwritten offering, if the lead managing underwriter of an offering involving a Demand Registration advises the Holders that have requested or underwriters for such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to selected by DoCoMo; PROVIDED that such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration managing underwriter shall be allocated pro rata among all requesting Holders on a nationally recognized investment banking firm and shall be reasonably acceptable to the basis of Issuer and provided, further that with respect to any registration effected in connection with Section 4.3(e) hereof, AT&T or AT&T Wireless, as the relative number of securities originally requested to be registered by each of them.
(e) The Company shall case may be, will be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if select the lead managing underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in or underwriters. In addition to the total number of Registrable Shares that foregoing, the Holders intend Issuer may, at its option, select a nationally recognized investment banking firm reasonably acceptable to include is such DoCoMo to act as (1) would materially and adversely affect a co-managing underwriter. The Issuer shall have the price right to approve the selection of the Ordinary Shares counsel to any managing underwriter hereunder, which approval will not be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationunreasonably withheld.
Appears in 1 contract
Sources: Investor Agreement (At&t Corp)
Demand Registrations. (a) Each Holder shall have If, after six (6) months following an initial public offering of equity securities of the right (the "Demand Right") during the term of this Agreement to require Company, the Company shall receive a written request (specifying that it is being made pursuant to this Section 2) from (i) Stockholders owning in excess of 50% of the then outstanding shares of $5.83 par Common Stock or (ii) Stockholders owning in excess of 50% of the then outstanding $.01 par Common Stock requesting that the Company file a registration statement under the Securities Act Act, or a similar document pursuant to any other statute then in respect of all or some of effect corresponding to the Registrable Shares held by such Holder (but not less than a number Securities Act, covering the registration of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) belowowned by such Stockholder, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, then the Company shall not later than seventy-five (75) days after receipt by the Company of such a written request, file a registration statement with the Commission and thereafter use its best efforts relating to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all such Registrable Shares as to which such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be request for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, demand registration relates and the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date offering of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered under the Securities Act. No registration initiated hereunder shall count as a registration under this Section 2 unless and until it shall have been declared effective by the Commission.
(b) If the total amount of Registrable Shares that all Stockholders request to be included in an offering made pursuant to this Section 2 exceeds the Demand Registration shall be reduced to amount of securities that the underwriters reasonably believe compatible with the success of the offering, then the Company will include in such registration only the number of securities which, in the good faith opinion of such underwriters, can be sold without (i) materially and adversely affecting sold, selected from the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares requested to be included in such by the Stockholders who requested the registration shall be allocated pursuant to this Section 2 pro rata among all requesting Holders based on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as each of them --- ---- owns.
(1c) would materially and adversely affect the price The underwriter of any underwriting requested under this Section 2 shall be selected by a majority in interest of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than Stockholders requesting such registration and the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand RegistrationCompany.
Appears in 1 contract
Sources: Registration Rights Agreement (White Pine Software Inc)
Demand Registrations. (a) Each At any time after the Closing Date, any Holder shall have the right or Holders (the "Demand Right"each, together with any Holder requesting registration pursuant to, and in compliance with, Section 11.02, a “Requesting Holder”) during the term of this Agreement may deliver a written request to require the Company to file in accordance with Section 14.01 (a “Demand”) that the Company effect a registration statement with respect to the Registrable Securities under the Securities Act in respect to cover a registered sale of all or some of the such Registrable Shares held Securities for cash by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company)Requesting Holder. Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register Such Demand shall specify the number of Registrable Shares Securities such Requesting Holder intends to include in such registration and the methods by which such Requesting Holder intends to sell or dispose of such Registrable Securities (including whether such Requesting Holder intends to distribute the Registrable Securities by means of an underwritten offering (an “Underwritten Offering”) or pursuant to sales from time to time without an underwriter (a “Shelf Offering”)); provided, however, that in no event may any Requesting Holder make a Demand for an Underwritten Offering unless the Registrable Securities to be offered and sold by such Requesting Holder in such Underwritten Offering are reasonably expected to result in gross proceeds to such Requesting Holder of at least twenty million dollars ($20,000,000). Upon receipt of such Demand, the Company shall, subject to the terms and conditions of this Article 11, use its commercially reasonably efforts (subject, for the avoidance of doubt, to Blackout Periods to the extent provided in Section 11.04) to (i) file and cause to become effective under the Securities Act a Registration Statement covering the resale of such Registrable Securities by such Requesting Holder as soon as reasonably practicable; (ii) qualify such Registrable Securities under applicable blue sky or other securities laws of any state of the United States of America to the extent set forth herein; and (iii) comply in all material respects with applicable regulations issued under the Securities Act and any other governmental requirements or regulations, in each case in such a manner as would permit or facilitate the distribution in an underwritten offering or other sale of all or any portion of such Registrable Securities as reasonably specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringDemand.
(b) Anything in this Agreement to the contrary notwithstandingIn connection with any Demand that requests an Underwritten Offering, the Company Requesting Holders named as selling securityholders in the related Registration Statement shall be entitled to postpone and delay select (subject to the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can Company’s approval, with will not be reasonably effected if (iunreasonably withheld or delayed) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereoflead managing underwriter thereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) and the Company shall determine enter into any reasonable and customary agreement requested by such lead managing underwriter in connection with such Underwritten Offering, including, but not limited to, an underwriting agreement in customary form with such lead managing underwriter; provided, however, that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of no event shall the Company and be required to include shares of Common Stock or any other securities for its shareholders. After the expiration of any own account in such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registrationoffering.
(c) Notwithstanding anything contained in this Section 3.01to the contrary:
(i) upon the Company’s receipt of any Demand by a Requesting Holder pursuant to Section 11.01(a), the Company shall not be required will have the right to file a registration statement within 180 days of the effective date of a prior registration statement amend any Registration Statement theretofore filed pursuant to this Section 11.01 to add such Requesting Holder as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;selling securityholder thereunder; and
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) in no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of event will the Company be contrary obligated to applicable rules or law;
effect more than three (v3) the Company Underwritten Offerings pursuant to this Section 11.01 (provided for this purpose, an offering shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related theretoconstitute an Underwritten Offering unless and until it is completed).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.
Appears in 1 contract
Sources: Senior Convertible Note Purchase Agreement (Coherus BioSciences, Inc.)
Demand Registrations. (a) Each Holder At any time following the date upon which the Shareholder has converted or given the Company notice of its election to convert any or all of the Preferred Stock into shares and prior to the date on which the Company shall have obtained a written opinion of legal counsel reasonably satisfactory to the right Shareholder and addressed to the Company and the Shareholder to the effect that the Shares may be publicly offered for sale in the United States by the Shareholder without restriction as to manner of sale and amount of securities sold and without registration under the Securities Act (such period, the "Demand RightPeriod") during ), the term of this Agreement Shareholder shall ------------- have the unlimited right to require the Company to file a registration statement under the Securities Act in respect of all or some a portion of the Registrable Shares held by delivering to the Company written notice stating that such Holder (but not less than a right is being exercised, specifying the number of Registrable Shares that represents at least 2.65% to be included in such registration and describing the intended method of the then outstanding Ordinary Shares of the Companydistribution thereof (a "Demand Request"). Subject to the provisions of subsection (b) below, as As promptly as practicable, but in no event later than 45 -------------- thirty (30) days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such requestDemand Request, the Company shall file with the Commission SEC and thereafter use its best efforts to cause to be declare declared effective promptly a registration statement (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the Securities Act if so requested by Shareholder and if the Company is then eligible to use such a registration) (a "Demand Registration") providing ------------------- for the registrations registration of all Registrable such number of Shares as such Holder the Shareholder shall have demanded be registeredregistered for distribution in accordance with such intended method of distribution. The Company may satisfy its obligation shall have the right and option to file designate any one of the Demand Registrations be filed as a shelf registration or other successor procedure as prescribed by the SEC, as above provided as a shelf registration statement, for which the Company agrees to pay certain costs therefor pursuant to Section 3.5 below (the "Free Shelf Registration"). After completion of any Demand Registration through an automatic ----------------------- designated as a shelf registration statement on form F-3 within by the meaning of Rule 405 under Company, any subsequent Demand Registrations shall not be shelf registrations unless the Securities ActCompany otherwise agrees. All requests made Notwithstanding the foregoing, the Company shall not be obligated to effect any Demand Registration requested pursuant to this Section 3.01 (a) 3.1 if the number of Shares then held by the Shareholder shall specify the amount be less than 1% of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringthen outstanding Common Stock.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay delay, for a reasonable period of time, not to exceed ninety (90) days in the case of clauses (i) and (ii) below, or thirty (30) days in the case of clause (iii) below (each, a "Blackout Period"), the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company --------------- shall determine that any such filing or the offering of any Registrable Shares would (xi) in the good faith judgment of the Board of Directors of the Company, unreasonably impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, merger, corporate reorganization or other similar transaction involving the Company, (yii) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (ziii) in good faith judgment of the Board require disclosure of material nonpublic non-public information (other than information relating to an event described in clause (i) or (ii) of this subsection (b)) which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholdersstockholders; provided, -------- however, that in the case of a Blackout Period pursuant to clause (i) above, the Blackout Period shall earlier terminate upon the completion, or abandonment of the relevant financing, acquisition, merger, corporate reorganization or other similar transaction; provided, further, in the case -------- ------- of a Blackout Period pursuant to clause (ii) above, the Blackout Period shall either terminate thirty (30) days after the completion or upon the abandonment, of the relevant securities offering or sale; and provided, -------- further, that in the case of a Blackout Period pursuant to clauses (i) or ------- (iii) above, the Company shall give written notice of its determination to postpone or delay the filing of any Demand Registration and in the case of clause (iii) above, the Blackout Period shall earlier terminate upon public disclosure by the Company or public admission by the Company of such material non-public information or such time as such material non-public information shall be publicly disclosed; and provided, further, that in the -------- ------- case of a Blackout Period pursuant to clause (i), (ii) or (iii) above, the Company shall furnish to the Shareholder a certificate of an executive officer of the Company to the effect that an event permitting a Blackout Period has occurred. Notwithstanding anything herein to the contrary, the Company shall not exercise pursuant to clause (i) or (ii) of the preceding sentence the right to postpone or delay the filing of any Demand Registration more than twice in any twelve (12) month period. Upon notice by the Company to the Shareholder of its determination that a Blackout Period exists, the Shareholder covenants that it shall keep the fact of any such notice strictly confidential, and, in the case of a Blackout Period pursuant to clauses (iii) above or Section 3.1(c) below, promptly halt any offer, sale, trading or transfer by it or any of its Affiliates of any Common Stock 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, 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 by the Company, will deliver to the Company any copies then in such Shareholder's possession of the prospectus covering such Shares, that was in effect at the time of receipt of such notice. After the expiration of any such postponement or delay Blackout Period and without any further request from a Holderthe Shareholder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder the Shareholder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request.
(c) Anything in this Agreement to the contrary notwithstanding, in which case a Demand Registration has been filed, if a transaction of the type specified in Section 3.1(b)
(i) occurs other than as a result of actions taken by the Company, the Company may cause such Demand Registration to be withdrawn request and its effectiveness terminated or may postpone amending or supplementing such Demand Registration for a reasonable period of time, not to exceed the Blackout Period applicable to Section 3.1(b)(i).
(d) The Shareholder may withdraw a Demand Request in circumstances including, but not limited to, the following: if (i) the Company is in material breach of its obligation hereunder and has not cured such breach after having received notice thereof and a reasonable opportunity to do so or (ii) the withdrawal occurs during a Blackout Period.
(e) The Company may elect to include in any registration statement filed pursuant to this Section 3.1 any Common Stock to be issued by it or held by any of its subsidiaries or by any other shareholders only to the extent such Common Stock is offered and sold pursuant to, and on the terms and subject to the conditions of, any underwriting agreement or distribution arrangements entered into or effected by the Shareholder. No securities shall be included in a Demand Registration unless the managing underwriter advises the Company in writing that inclusion of such securities will not constitute a materially and adversely affect the price or success of the Demand Registration.
(cf) Notwithstanding anything contained The managing underwriter for any Demand Registration shall be selected by the Shareholder, provided that such underwriter shall be -------- reasonably satisfactory to the Company.
(g) Anything in this Section 3.01:
(i) Agreement to the contrary notwithstanding, the Company shall not be required to file a registration statement register any Shares pursuant to this Section 3.1 if the Shareholder had the opportunity to register Shares pursuant to Section 3.2 hereof within 180 the 60 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months immediately preceding such request, and no Shares were excluded from the Effective Date,
(iii) no request for a Demand Registration may be made offering by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the managing underwriter or underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto)thereof.
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.
Appears in 1 contract
Demand Registrations. (a) Each Holder shall have Subject to the right (the "Demand Right") during the term conditions of this Agreement to require Section 2.1, if the Company to shall receive at any time after the date hereof a written request from Medtronic or other Holder(s) of at least 50 percent of the Registrable Securities then outstanding that the Company file a registration statement under the Securities Act in respect 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 receipt thereof, give written notice of such request to all Holders and, subject to the limitations of Section 2. 1 (b), effect, as soon as practicable, the registration under the Securities Act of all or some of Registrable Securities that the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject Holders request to the provisions of subsection be registered.
(b) belowIf the Holder requesting such registration intends to distribute the Registrable Securities covered by its request by means of an underwriting, as promptly as practicable, but in no event later than 45 days after the Holder shall so advise the Company receives as a written part of its request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 2.1 and the Company shall include such information in the written notice referred to in Section 2.1(a). In such event, the right of any Holder to include such Holder's Registrable Securities in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (a) shall specify the amount unless otherwise mutually agreed by a majority in interest of the Registrable Shares Holders) to be registeredthe extent provided herein. The Demand Registration 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 by the Holder that initially requested the registration (which underwriter or underwriters shall be for a firm commitment underwritten public offeringreasonably acceptable to the Company).
(bc) Anything in The Company shall not be obligated to effect more than two registrations pursuant to this Agreement to the contrary notwithstandingSection 2.1. Further, the Company shall not be entitled obligated to postpone and delay the filing of take any Demand Registration action to effect any registration pursuant to this Section 2.1 until the earliest practicable time at which such Demand Registration can be reasonably effected if to occur of, (i) the Company date that is conducting or about to conduct an underwritten public offering of securities in which three years after the Holder is entitled to join pursuant to Section 3.02 date hereof, (ii) the first date as of which any other shareholder of the Company is subject to an existing contractual obligation not to engage in exercises a public offeringdemand registration, or (iii) 180 days after the financial statements effective date of the registration statement pertaining to the first underwritten public
1. The Company shall give written notice to the Holders of any demand made by other holders of securities of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date registration of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registrationsecurities.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.
Appears in 1 contract
Demand Registrations. (a) Each Holder shall have Subject to the right (the "Demand Right") terms and conditions hereof, solely during the term of this Agreement to require any period when the Company is not eligible under Applicable Law to file register Registrable Securities on Form S-3 pursuant to Section 1.3, or when the Company is so eligible but has failed to comply with its obligations under Section 1.3, any Demand Stockholders (“Requesting Stockholders”) shall be entitled to make an unlimited number of written requests of the Company (each, a “Demand”) for registration statement under the Securities Act in respect of all or some an amount of the Registrable Shares Securities then held by such Holder Requesting Stockholders that equals or is greater than the Registrable Amount (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company“Demand Registration”). Subject Thereupon the Company will, subject to the provisions terms of subsection (b) belowthis Agreement, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its reasonable best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective registration as promptly as practicable unless such Holder shall have, prior to under the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01Securities Act of:
(i) the Registrable Securities which the Company shall not be required has been so requested to file a registration statement within 180 days register by the Requesting Stockholders for disposition in accordance with the intended method of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Sharesdisposition stated in such Demand;
(ii) a Holder shall not be entitled all other Registrable Securities which the Company has been requested to request a Demand Registration until after twelve months from the Effective Date,register pursuant to Section 1.1(b), but subject to Section 1.1(g); and
(iii) no all shares of Company Common Stock which the Company may elect to register in connection with any offering of Registrable Securities 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 the additional shares of Company Common Stock, if any, to be so registered.
(b) A Demand shall specify (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder(s). Within three (3) Business Days after receipt of a Demand, the Company shall 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 which the Company has received a written request for inclusion therein within ten (10) days after the Company’s notice required by this paragraph has been given, subject to Section 1.1(g). Each such written request shall comply with the requirements of a Demand as set forth in this Section 1.1(b).
(c) A Demand Registration shall not be deemed to have been effected and shall not count as a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(ivi) the Company shall not be required to file unless a registration statement if with respect thereto has become effective and has remained effective for a period of at least one hundred eighty (180) days or such shorter period in which all Registrable Securities included in such Demand Registration have actually been sold thereunder (provided, that such period shall be extended for a period of time equal to the filing period the holder of Registrable Securities refrains from selling any securities included in such a registration statement, or statement at the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors request of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by lead managing underwriter(s) pursuant to the provisions of this Agreement) or (ii) if, after it has become effective, such flingDemand Registration becomes subject, would in the good faith judgment prior to one hundred eighty (180) days after effectiveness, to any stop order, injunction or other order or requirement of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing Commission or other debt documents (includingGovernmental Authority, other than by reason of any ancillary documents related thereto)act or omission by the applicable Selling Stockholders.
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested Registrations shall be on such appropriate registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price form of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration Commission as shall be reduced selected by the Company and reasonably acceptable to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of themRequesting Stockholders.
(e) The Company shall not be entitled obligated to include newly issued Ordinary Shares in any Demand Registration; provided(i) subject to Section 1.1(c), however, that if maintain the lead underwriter effectiveness of an offering involving a registration statement under the Securities Act filed pursuant to a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as for a period longer than one hundred eighty (1180) would materially and adversely affect the price of the Ordinary Shares to be offered days or (ii) result effect any Demand Registration (A) within six months of a “firm commitment” Underwritten Offering in a greater 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 Ordinary Shares being offered than Registrable Securities requested by such Requesting Stockholders to be included in such Demand Registration were included and sold, (B) within six months of the market could reasonably absorbcompletion of any other Demand Registration (including, then for the Holders will promptlyavoidance of doubt, so advise 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 and may requireto proceed with the Demand Registration because of the unavailability of audited or other required financial statements; provided, by 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 postpone (upon written notice to the Requesting Stockholders) 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, the Company accompanying such advice, shall deliver to the Requesting Stockholders requesting registration a certificate signed by either the chief executive officer or the chief financial officer of the Company certifying that, in the good faith judgment of the Company, the conditions described in 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 extent necessary number of Registrable Securities requested to meet be included in such limitationDemand Registration by the Requesting Stockholders, newly issued Ordinary Shares which, in the opinion of the lead managing underwriter(s), can be sold without adversely affecting the success thereof, pro rata among such Requesting Stockholders on the basis of the number of such Registrable Securities requested to be included by such Requesting Stockholders; (ii) second, up to the number of Registrable Securities requested to be included in such Demand Registration by other Demand Stockholders, 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 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.
(h) 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 offering of such Registrable Securities; provided, that such investment banker(s) and manager(s) shall be excluded from reasonably acceptable to the Company (such Demand Registrationapproval not to be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Sources: Registration Rights Agreement (Fidelity National Information Services, Inc.)
Demand Registrations. (a) Each Holder If, following the date hereof, the Company is unable to file, cause to be effective or maintain the effectiveness of a Shelf Registration Statement as required under Section 2.1, the Holders' Representative shall have the right by delivering a written notice to the Company (the a "Demand RightNotice") during the term of this Agreement to require the Company to, pursuant to file a registration statement the terms of this Agreement, register under and in accordance with the provisions of the Securities Act in respect of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in Securities Beneficially Owned by any Holders and requested by such request, the Company shall file with the Commission and thereafter use its best efforts to cause Demand Notice to be declare effective promptly a registration statement so registered (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file ); provided, however, that if a Demand Notice is made in respect of a number of Registrable Securities that is less than all of the Registrable Securities Beneficially Owned by any Holders, then the sale of the Registrable Securities requested to be registered by the Holders' Representative must be reasonably expected to result in aggregate gross cash proceeds in excess of $25,000,000 (without regard to any underwriting discount or commission). 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 45 days after receipt by the Company of such Demand Notice (subject to paragraph (d) of this Section 2.2), a Registration through an automatic shelf registration statement on form F-3 within Statement relating to the meaning offer and sale of Rule 405 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 requests made pursuant to this Section 3.01 (a) shall specify Act as promptly as practicable after the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringfiling thereof.
(b) Anything If any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in this Agreement 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 contrary notwithstandingtotal number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such underwritten offering was requested by the Holders and any Other Securities proposed to be included by the Stockholders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder and any Other Securities Beneficially Owned by each such Stockholder until all such securities have been allocated for inclusion; and
(ii) second, among any other holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder of Other Securities.
(c) In the event of a Demand Registration, the Company shall be required to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least 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.
(d) The Company shall be entitled to postpone and delay (but not more than twice in any 12-month period), for a reasonable period of time not in excess of 90 days, the filing of any or initial effectiveness of, or suspend the use of, a Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected Statement if (i) the Company is conducting or about delivers to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) Holders' Representative a certificate signed by both the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements Chief Executive Officer and Chief Financial Officer of the Company for the fiscal period most recently ended prior to such written request are not yet availablecertifying that, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impedesuch registration, delay offering or otherwise use would reasonably be expected to materially adversely affect or materially interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of bona fide material nonpublic information which, if disclosed at such time, would be materially harmful to the interests financing of the Company or any material transaction under consideration by the Company or would require the disclosure of information that has not been, and its shareholdersis not otherwise required to be, disclosed to the public, the premature disclosure of which would materially adversely affect the Company. After Such certificate shall contain a statement of the expiration of any reasons for such postponement or delay suspension and without any further request from a Holder, the Company shall effect the filing an approximation of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of themanticipated delay.
(e) The Holders' Representative shall have the right to notify the Company shall be entitled that it has determined that the Registration Statement relating to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that be abandoned or withdrawn, in which event the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is shall promptly abandon or withdraw such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.Registration Statement
Appears in 1 contract
Demand Registrations. (a) Each Holder At any time after August 1, 2001, the holders of a majority of the Registrable Securities shall have the right be entitled to request registration (the a "Demand RightRequest") during the term of this Agreement to require the Company to file a registration statement under the Securities Act in respect of 1933, as amended (the "Securities Act") of all or some any portion of their Registrable Securities. Registrable Securities means any Common Share or other securities issued or issuable under this Warrant. For purposes of this Warrant, a Person will be deemed to be the Registrable Shares held by such Holder (but not less than a number holder of Registrable Shares that represents at least 2.65% Securities whenever such Person has the right to acquire, directly or indirectly, such Registrable Securities (upon conversion or exercise in connection with a transfer of securities or otherwise, but disregarding any restrictions or limitations upon the then outstanding Ordinary Shares exercise of such right), whether or not such acquisition has actually been effected. As to any particular securities constituting Registrable Securities, such securities will cease to be Registrable Securities when they have been (x) effectively registered under the Company). Subject Securities Act and disposed of in accordance with the registration statement covering them, or (y) sold to the provisions of subsection public through a broker, dealer or market maker pursuant to Rule 144 (bor any similar provision then in force) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made Under this Article 6, a Person is any individual or entity. A registration requested pursuant to this Section 3.01 (a6.1(a) is referred to in this Article 6 as a Demand Registration. The Demand Request shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone approximate number and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number type of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally Securities requested to be registered and the intended method of distribution thereof (which may include an underwritten registration on a firm commitment basis). Within ten days after receipt of a Demand Request, Stores shall give written notice of such requested registration to each other holder of Registrable Securities and shall include in such registration all Registrable Securities with respect to which Stores has received written requests for inclusion therein and the intended method of distribution thereof within 30 days after the receipt by each Stores of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any the Demand RegistrationRequest; provided, however, that if in no event will Stores be required to file the lead underwriter first Demand Registration prior to September 10, 2001.
(b) The holders of an offering involving the Registrable Securities as a group shall be entitled to request two Demand Registrations. A registration shall not count as a Demand Registration advises until it has become effective under the Holders that Securities Act and any blue sky laws of any applicable state and remains so effective until the earlier of (i) the date all Registrable Securities included therein have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered been sold pursuant thereto, or (ii) result so long as at least 75% of the Registrable Securities included therein have been sold, the time periods for which such registration statement is required to be maintained as effective under Section 6.6(b) have expired, unless such registration statement is withdrawn at the request of the holders of a majority of the Registrable Securities included therein (other than a withdrawal described in Section 6.1(d)).
(c) All Registrable Securities requested to be included in a greater Demand Registration shall be included unless the offering is to be underwritten and the managing underwriters advise Stores in writing that all of the Registrable Securities requested to be included may not be sold without adversely affecting the marketability of the offering. In such case, the number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.Registrable
Appears in 1 contract
Sources: Warrant Agreement (Mazel Stores Inc)
Demand Registrations. (a) Each Holder shall have Except as otherwise provided below, at any time and from time to time commencing after the right Closing Date, upon the written request of the holders of at least 51% of the Registrable Securities (the "Demand RightInitiating Holders") during the term of this Agreement to require ), that the Company to file a effect the registration statement under the Securities Act in respect (such a written request being hereinafter referred to as a "Demand Registration") of all or some any of the Registrable Shares held by such Holder (but not less than a number Securities, the Company will promptly give written notice to all other holders of Registrable Shares Securities that represents at least 2.65% a Demand Registration has been received. For a period of 15 days following delivery of such notice, the then outstanding Ordinary Shares other holders of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written Registrable Securities may request from such Holder demanding that the Company so also register their Registrable Securities and after the expiration of such 15 day period, the Company shall notify all holders of Registrable Securities of the number of Registrable Shares specified in such requestSecurities to be registered. Thereupon, the Company shall file with the Commission and thereafter will use its best efforts to cause to be declare effective promptly a the prompt registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act, subject to the provisions of this Section 7, of all Registrable Securities which the holders thereof have requested the Company to register,-and in connection therewith, prepare and file on such appropriate form as the Company, in its reasonable discretion, shall determine, a Registration Statement under the Securities Act to effect such registration; provided, however, that the Company shall not be required to effect a Demand Registration unless the market value of the Registrable Securities to be sold in any such Demand Registration shall be estimated to be at least $7,500,000 at the time of the filing of such Registration Statement. All requests made With respect to any Registration Statement filed, or to be filed, pursuant to this Section 3.01 (a) 7.01(a), if the Company shall specify furnish to the amount holders of Registrable Securities a certified resolution of the Registrable Shares Board of Directors stating that in the Board of Directors' good faith judgment it would (because of the existence of, or in anticipation of, any acquisition or financing, merger, sale of assets, recapitalization or other similar corporate activity, or the unavailability for reasons beyond the Company's control of any required audited financial statements, or any other event or condition of similar significance to the Company) be materially disadvantageous (a "Disadvantageous Condition") to the Company or its stockholders for such a Registration Statement to be registered. The Demand Registration shall maintained Effective, or to be filed and become Effective, and setting forth the general reasons for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstandingsuch judgment, the Company shall be entitled to postpone cause such Registration Statement to be withdrawn and delay the filing effectiveness of any Demand such Registration until Statement terminated, or, in the earliest practicable time at which such Demand event no Registration can Statement has yet been filed, shall be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offeringfile any such Registration Statement, until such Disadvantageous Condition no longer exists (iii) the financial statements notice of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) which the Company shall determine that promptly deliver to all holders of Registrable Securities). Upon receipt of any such filing or the offering notice of any a Disadvantageous Condition, such holders of Registrable Shares would (x) in the good faith judgment Securities will forthwith discontinue use of the Board of Directors of the Companydisclosure document contained in such Registration Statement and, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities if so directed by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at each such time, would be materially harmful holder will deliver to the interests Company all copies, other than permanent file copies then in such holder's possession, of the disclosure document then covering such Registrable Securities current at the time of receipt of such notice, and, in the event no Registration Statement has yet been filed, all drafts of the disclosure document covering such Registrable Securities. In the event that the Company and its shareholders. After the expiration shall give any notice of any such postponement or delay and without any further request from a HolderDisadvantageous Condition, the Company shall effect at such time as it in good ▇▇▇▇▇ ▇▇▇▇▇ appropriate file a new Registration Statement covering the filing Registrable Securities that were covered by such withdrawn Registration Statement, and such Registration Statement shall be maintained Effective for such time as may be necessary so that the period of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date effectiveness of such Demand Registrationnew Registration Statement, withdrawn in writing its when aggregated with the period during which such initial requestRegistration Statement was Effective, in which case shall be such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed time as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made otherwise required by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related theretoSection 7.01(c).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.
Appears in 1 contract
Sources: Series a Preferred Stock Purchase Agreement (Paula Financial)
Demand Registrations. (a) Each Holder shall have At any time commencing one year after the right (date the "Demand Right") during the term initial Registration Statement of this Agreement to require the Company to file a registration statement is declared effective by the Commission under the Securities Act Act, a Stockholder or Stockholders holding in respect of all or some of the Registrable Shares held by such Holder (but aggregate not less than a number of Registrable Shares that represents at least 2.65% majority of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) belowRegistrable Shares, as promptly as practicablemay request, but in no event later than 45 days after the Company receives a written request from such Holder demanding writing, that the Company so register effect the registration on Form S-1 or Form S-2 (or any successor form) for at least the number of Registrable Shares specified shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall file with promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the Commission and thereafter right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to cause to be declare effective promptly a registration statement effect the registration, on Form S-1 or Form S-2 (a "Demand Registration") providing for the registrations or any successor form), of all Registrable Shares as such Holder shall have demanded be registered. The which the Company may satisfy its obligation has been requested to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringso register.
(b) Anything The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in this Agreement which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the contrary notwithstanding, the Company shall be entitled actions or omissions to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors act of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request registration shall not constitute be considered a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) demand for registration hereunder. In addition, the Company shall not be required to file a effect any registration statement (other than on Form S-3 or any successor form relating to secondary offerings) within 180 days six months of the effective date of a prior registration statement filed as a result of a request for a Demand any other Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors Statement of the Company be contrary in which the Stockholders shall have been entitled to applicable rules join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or law;
(vsecurities exercisable for or convertible into shares of Common Stock) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result may include shares of Common Stock in a breach any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the Company's license; and
(vi) managing underwriter the Company shall not be required to file a registration statement if the filing of all, or part of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the Ordinary then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company shall not be obligated to effect more than two registrations on Form S-3 pursuant to this Section 2(c), and further provided that the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to be offered effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, or (ii) result is engaged in a greater number any other activity which, in the good-faith determination of Ordinary Shares being offered than the market could reasonably absorbCompany’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demanded.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (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 part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be registered included in such registration by the Demand Registration shall be reduced to participating Stockholders (or in any such number whichother proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such shares of Registrable Shares to be included in such registration underwriting shall not be allocated pro rata among reduced unless all requesting Holders on other securities are first excluded from the basis of the relative number of securities originally requested to be registered by each of themunderwriting.
(eh) The Company shall Only Common Stock may be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result included in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice registration pursuant to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationthis Agreement.
Appears in 1 contract
Sources: Development Collaboration and License Agreement (GenMark Diagnostics, Inc.)
Demand Registrations. (a) Each Holder shall have At any time and from time to time until the right (the "Demand Right") during the term third anniversary of this Agreement to require the Company to file Agreement, Alliant Energy may make a written request for registration statement under the Securities Act in respect of all or some part of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement Securities (a "Demand Registration") providing for ); provided that such request specifies the registrations number of all shares of Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares proposed to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringsold and the intended method of disposition thereof.
(b) Anything in WPC shall not be required to effect more than three Demand Registrations pursuant to this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Section 2.1.
(c) A registration will not count as a Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) registration statement has become effective under the Company is conducting Securities Act and shall have remained or about to conduct an underwritten public offering been effective for a period of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) 270 days in the good faith judgment of aggregate or such lesser period as may be necessary to permit the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at all Registrable Securities registered in connection with such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(cd) Notwithstanding anything contained in this Section 3.01:
(i) If Alliant Energy so elects, the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required such Registrable Securities pursuant to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion form of an underwritten offering. Alliant Energy shall select one or more nationally recognized firms of investment bankers to act as the book-managing, lead-managing and co-managing Underwriter or Underwriters in connection with such underwriters, can be sold without (i) materially offering and adversely affecting the price of the Ordinary Shares any additional investment bankers and managers to be offered or (ii) resulting used in a greater number of Ordinary Shares being registered than connection with the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of themoffering.
(e) The Company If, at the time of any request to register Registrable Securities pursuant to Section 2.1, (i) WPC is (A) pursuing an acquisition, merger, reorganization, disposition or other similar transaction and the Board of Directors determines in good faith that WPC's ability to pursue or consummate such transaction would be materially adversely affected by such registration statement requested by Alliant Energy or (B) in possession of material non-public information concerning it or its business and affairs and the Board of Directors determines in good faith that the prompt public disclosure of such information in a registration statement would have a material adverse effect on WPC and (ii) WPC so notifies Alliant Energy within five days after Alliant Energy makes such a request, then WPC may at its option postpone the filing of a registration statement in response to such request for a period not in excess of 45 days from the date of such request; provided that such right to postpone may be exercised by WPC not more than once within any twelve-month period. If WPC shall so postpone the filing of a registration statement, Alliant Energy shall have the right to withdraw the request for registration by giving written notice to WPC within 30 calendar days after receipt of the notice of postponement, and WPC shall not be deemed to have effected a Demand Registration pursuant to this Section 2.1, but WPC shall be entitled deemed to have exercised its postponement right. WPC shall not include newly issued Ordinary Shares in any Demand Registration; provided, however, that if Registration any securities which are not Registrable Securities without the lead underwriter prior written consent of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand RegistrationAlliant Energy.
Appears in 1 contract
Sources: Registration Rights Agreement (Whiting Petroleum Corp)
Demand Registrations. (a) Each Holder If, following the date hereof, the Company is unable to file, cause to be effective or maintain the effectiveness of a Shelf Registration Statement as required under Section 2.1, the Holders’ Representative shall have the right by delivering a written notice to the Company (the "a “Demand Right"Notice”) during the term of this Agreement to require the Company to, pursuant to file the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities Beneficially Owned by any Holders and requested by such Demand Notice to be so registered (a registration statement “Demand Registration”). 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 30 days after receipt by the Company of such Demand Notice (subject to paragraph (d) of this Section 2.2), 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 in respect of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days practicable after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Actfiling thereof. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration Registrations shall be for a firm commitment underwritten public offeringofferings unless otherwise approved by the Holders’ Representative.
(b) Anything If any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in this Agreement 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 contrary notwithstandingtotal number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities included, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such underwritten offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder until all such Registrable Securities have been allocated for inclusion; and
(ii) second, Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder of Other Securities.
(c) In the event of a Demand Registration, the Company shall be required to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one year after such Registration Statement was declared effective or such shorter period in which all Registrable Securities included in such Registration Statement actually have been sold.
(d) The Company shall be entitled to postpone and delay (but not more than once in any 12-month period) the filing or initial effectiveness of, or suspend the use of (but not more than twice in any 12-month period), a Demand Registration until the earliest practicable Statement, in each case for a reasonable period of time at which such Demand Registration can be reasonably effected not in excess of 90 days, if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which notifies the Holder is entitled to join pursuant to Section 3.02 hereofHolders’ Representative that, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (xA) in the good faith judgment of the Board of Directors of the Company, impedesuch registration, delay offering or otherwise use would reasonably be expected to materially adversely affect or materially interfere with any pending bona fide material financing of the Company or contemplated financing, acquisition, corporate reorganization or other similar any material transaction involving under consideration by the Company, (yB) based upon advice from of counsel, would require the Company's investment banker or financial advisordisclosure 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 any pending or contemplated offering or sale of any class of securities by the Company, or and (zC) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After has a bona fide business purpose for preserving the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date confidentiality of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) financing or transaction. It being understood that the Company shall not be required entitled to file a registration statement within 180 days of postpone the effective date of a prior registration statement filed as a result of a request for filing or initial effectiveness of, or suspend the use of, a Demand Registration by a Holder Statement, if the financing or within 180 days other material transaction includes the registration, offer and sale of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of equity securities of the Company, except Company unless the holders of Registrable Securities are offered piggyback rights registration rights that are pari passu in priority with the equity securities the Company is registering for its own account and in priority to any equity securities the Company is registering for other Persons. Nothing in this Section 2.2(d) shall permit the disclosure to the Holders’ Representative of any material non-public information regarding the Company without the express written consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of themHolders’ Representative.
(e) The Holders’ Representative shall have the right to notify the Company shall be entitled that it has determined that the Registration Statement relating to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that be abandoned or withdrawn, in which event the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is shall promptly abandon or withdraw such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.Registration Statement
Appears in 1 contract
Sources: Registration Rights Agreement (Winnebago Industries Inc)
Demand Registrations. (a) Each Holder Beginning 5 years after the Closing Date, and continuing so long as Teachers' continuously owns (directly or indirectly) at least 10% of the outstanding Common Shares, Teachers' shall have the right (the "Demand Right") during the term of this Agreement to require the Company CanOxy to file a registration statement (other than a shelf registration statement) under the Securities Act in respect of all or some Laws covering any of the Registrable Shares held by such Holder Securities (but not less more than one Long Demand Registration and one Short Demand Registration in any 12 month period) by delivering a written request to CanOxy specifying (i) whether the registration requested is a Long Demand Registration or a Short Demand Registration, and (ii) the number of Registrable Shares that represents at least 2.65% Securities to be included in such registration by Teachers' and the intended method of distribution. All requests pursuant to thisss.
2.1 are referred to as "Demand Registration Requests", and the then outstanding Ordinary Shares of the Company). Subject registrations requested are referred to the provisions of subsection as "Demand Registrations".
(b) belowCanOxy shall, as promptly expeditiously as possible following a Demand Registration Request, use its best efforts to (i) effect such registration under the Securities Laws of the Registrable Securities which CanOxy has been so requested to register, for distribution in accordance with such intended method of distribution and (ii) if requested by Teachers', obtain as soon as is practicable, acceleration of the effective date of the registration statement relating to such registration.
(c) The Demand Registration rights granted under this ss.
2.1 are subject to the following limitations:
(i) CanOxy shall not be required to cause a registration pursuant to this ss. 2.1 to be declared effective within a period of 90 days after the last date of the "black out" or "lock-up" period provided by CanOxy in any underwriting agreement entered into in connection with the preceding registration statement of CanOxy filed pursuant to a Demand Registration Request;
(ii) if the board of directors of CanOxy, in its good faith judgment, determines that any registration of Registrable Securities should not be made or continued because (x) it would materially interfere with any material financing, acquisition, merger or other similar transaction involving CanOxy, or (y) CanOxy is in possession of material non-public information which, the board of directors of CanOxy, in its good faith judgment, determines (based on the advice of counsel) would be required to be disclosed in any such registration of Registrable Securities and that such disclosure would have a material adverse effect on CanOxy or its securityholders (both being a "Valid Business Reason"), (A) CanOxy 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 90 days, and (B) if a registration statement has been filed relating to a Demand Registration Request, if the Valid Business Reason has not resulted from actions taken by CanOxy, CanOxy may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer exists, but in no event for more than 90 days (such period of postponement or withdrawal underss.2.1(c)(ii)(A) or (B), the "Postponement Period"); and CanOxy 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; provided, however, that CanOxy 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.
(iii) if CanOxy shall give any notice of postponement or withdrawal of any registration statement underss. 2.1(c)(ii)(A) or (B), CanOxy shall not, during the Postponement Period, register any of its Common Shares under any of the Securities Laws (other than a registration regarding a previously established employee benefit plan, employee stock option plan, employee flow through share purchase plan, dividend reinvestment plan or COPrS or a registration statement on Form S-4 or S-8 (or an equivalent registration form then in effect) or an equivalent Canadian Prospectus relating to the transaction that constitutes the Valid Business Reason). Upon receipt of any notice from CanOxy that CanOxy has determined to withdraw or postpone any registration statement pursuant toss. 2.1(c)(ii) above, Teachers' will discontinue its disposition of Registrable Securities pursuant to such registration statement and, if CanOxy has determined to withdraw any registration statement and so directs Teachers', Teachers' will deliver to CanOxy (at CanOxy's expense) all copies, other than permanent file copies, then in Teachers' possession, of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice. If CanOxy shall have withdrawn or prematurely terminated a registration statement filed under thisss.2.1 (whether pursuant toss. 2.1(c) or as a result of any stop order, injunction or other order or requirement of the Commission or any other governmental agency or court), CanOxy shall not be considered to have effected an effective Demand Registration for the purposes of this Schedule until CanOxy 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 CanOxy shall give any notice of withdrawal or postponement of a registration statement, CanOxy shall, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event later than 45 90 days after the Company receives a written request from such Holder demanding that date of the Company so register withdrawal or postponement), use its best efforts to effect the number registration under the Securities Laws of the Registrable Shares specified Securities covered by the withdrawn or postponed registration statement in accordance with thisss.2.1 (unless Teachers' shall have withdrawn such request, in which case CanOxy shall not be considered to have effected an effective registration for the Company shall file purposes of this Schedule).
2.2 Piggyback" Registrations
(a) If CanOxy proposes to register any of its Common Shares under any of the Securities Laws (other than Common Shares registered solely in connection with a previously established employee benefit plan, employee stock option plan, employee flow through share purchase plan, dividend reinvestment plan, COPrS, take-over bid, tender offer, reorganization or merger or a Demand Registration underss.
2.1 of this Schedule), so long as Teachers' has continuously since its acquisition of the Commission Teachers' Purchased Shares owned (directly or indirectly) at least 5% of the outstanding Common Shares, CanOxy shall, subject toss.2.2(b) and thereafter (d) use its best efforts to cause all such Registrable Securities to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 registered under the Securities ActLaws (with the securities that CanOxy at the time proposes to register) to permit the sale or other disposition by Teachers' (in accordance with the intended method of distribution) of the Registrable Securities to be so registered. All requests made pursuant to this Section 3.01 No registration effected under thisss.2.2
(a) shall specify relieve CanOxy of its obligations to effect Demand Registrations). All requests pursuant to thisss. 2.2 are referred to as "Piggyback Registration Requests", and the amount registrations requested are referred to as "Piggyback Registrations". If such registration refers to a "bought deal", CanOxy shall consult with Teachers' as soon as is practicable in advance of signing any agreement or commitment letter in respect thereof, and Teachers' shall respond consistent with the Registrable Shares to be registered. The Demand Registration shall be time periods typical for a firm commitment underwritten public offeringtransactions of this nature.
(b) Anything At any time, CanOxy may determine for any reason not to register or to delay registration of such Common Shares. In such event, CanOxy shall give written notice of such determination to Teachers' and CanOxy's obligation to Teachers' to register any Registrable Securities in this Agreement connection with such registration shall terminate or be delayed for the same period of delay, as the case may be (without prejudice to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing rights of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholdersTeachers' under ss. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration2.1).
(c) Notwithstanding anything contained Teachers' shall have the right to withdraw its Piggyback Registration Request for inclusion of its Registrable Securities in this Section 3.01:
(i) the Company shall not be required to file a any registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled pursuant to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto)this ss.
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter 2.2 by giving written notice to CanOxy of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend its request to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registrationwithdraw; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested (i) such registration that the number of Ordinary Shares that the Company intends request to include withdraw must be made in addition writing prior to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price execution of the Ordinary Shares underwriting agreement (or such other similar agreement) with respect to be offered or such registration, and (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares withdrawal shall be excluded from irrevocable and, after making such Demand Registrationwithdrawal, Teachers' shall no longer have any right to include Registrable Securities in the registration as to which such withdrawal was made.
(d) If any registration pursuant to this ss.
Appears in 1 contract
Sources: Acquisition Agreement (Ontario Teachers Pension Plan Board)
Demand Registrations. (a) Each Holder shall have At any time after an initial public offering of shares of Common Stock of the right Company, as a result of which a minimum of eighteen percent (18%) of the "Demand Right") during Company’s Common Stock on a fully- diluted basis is held by the term of this Agreement public, and which is carried out pursuant to require the Company to file a registration statement under the Securities Act (the “Initial Public Offering”), Safeway may request in respect writing that the Company effect the registration under the Securities Act of all or some part of the Registrable Shares Securities held by such Holder (but not less than a Safeway and its Affiliates, specifying in the request the number and type of Registrable Shares that represents at least 2.65% Securities to be registered (such notice is hereinafter referred to as a “Safeway Demand Registration Request”). Upon receipt of such Safeway Demand Registration Request, the Company will promptly effect the registration under the Securities Act of the then outstanding Ordinary Shares of Registrable Securities which the Company). Subject Company has been so requested to register by Safeway; provided, however, that notwithstanding the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such requestthis Section 9.1(a), the Company shall not be obligated to file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 9.1 within the six month period immediately following (ai) shall specify the amount Initial Public Offering, or (ii) the effective date of any registration previously effected by the Registrable Shares Company pursuant to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringthis Section 9.1.
(b) Anything in this Agreement to Notwithstanding the contrary notwithstandingprovisions of Section 9.1(a) hereof, the Company shall not be entitled obligated to postpone and delay the filing file more than an aggregate of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join six registration statements pursuant to this Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration9.1.
(c) Notwithstanding anything contained in If the Company proposes to effect a registration requested pursuant to this Section 3.01:
(i) 9.1 by the Company shall not be required to file filing of a registration statement within 180 days on Form S-3 (or any similar short-form registration statement) and the intended method of distribution is through a firm commitment underwriting (an “Underwritten Offering”), the effective date Company will comply with any request by the managing underwriter to effect such registration on another permitted form if such managing underwriter advises the Company that, in its opinion, the use of a prior another form of registration statement filed as a result is of a request for a Demand Registration by a Holder or within 180 days of material importance to the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing success of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto)proposed offering.
(d) Notwithstanding anything contained in this A registration requested pursuant to Section 3.019.1(a) hereof will not be deemed to have been effected unless it has become effective under the Securities Act; provided, however, that if after it has become so effective, the lead underwriter offering of an offering involving a Demand Registration advises the Holders that have requested Safeway’s Registrable Securities pursuant to such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price interfered with by any stop order, injunction or other order or requirement of the Ordinary Shares to be offered Commission or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorbother governmental agency or court, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall will be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested deemed not to be registered by each of themhave been effected.
(e) The Company will pay all Registration Expenses in connection with each of the registrations of Registrable Securities effected by it pursuant to this Section 9.1.
(f) Whenever a requested registration pursuant to this Section 9.1 involves an Underwritten Offering, the only shares that may be included in such Offering are (i) Safeway’s Registrable Securities and (ii) securities of the Company being offered and sold for the Company’s behalf in such Offering (“Issuer Securities”).
(g) If a registration pursuant to this Section 9.1 involves an Underwritten Offering and the managing underwriter shall be entitled to include newly issued Ordinary Shares advise the Company that, in any Demand Registration; providedits judgment, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares shares proposed to be offered or (ii) result included in a greater number of Ordinary Shares being offered than the such Underwritten Offering should be limited due to market could reasonably absorbconditions, then the Holders Company will promptly, promptly so advise Safeway, and the Company and may requireIssuer Securities, by written notice to the Company accompanying if any, shall first be excluded from such advice, that, Underwritten Offering to the extent necessary to meet such limitation. If further exclusions are necessary to meet such limitation, newly issued Ordinary Shares the number of Registrable Securities of Safeway shall be excluded from until such limitation has been met.
(h) By making a Safeway Demand RegistrationRegistration Request, Safeway shall be deemed to have (i) a present intention to sell the Registrable Securities covered thereby, (ii) agreed to execute all consents, powers of attorney and other documents required in order to cause the registration statement to become effective, (iii) agreed, if the offering is at the market, to give the Company written notice of the first bona fide offering of the Registrable Securities covered thereby and to use the prospectus forming a part of the registration statement for only the period permitted by the Securities Act and the rules and regulations promulgated by the Commission thereunder, and (iv) agreed, in connection with the disposition of the Registrable Securities covered thereby, to comply with Section 10 of the Exchange Act and any other applicable rules and regulations promulgated by the Commission under the Exchange Act.
Appears in 1 contract
Sources: Stockholders' Agreement (Blackhawk Network Holdings, Inc)
Demand Registrations. (a) Each Holder shall have the right (the "Demand Right") during the term of this Agreement to require the Company to file a registration statement under the Securities Act in respect of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days At any time after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a the initial public offering of securities the Company's Common Stock under the Securities Act (the "IPO"), a Majority Interest may request that the Company register under the Securities Act all or any portion of the CompanyRegistrable Securities held by such requesting Investors. Upon receipt of such request, except with the consent Company shall promptly deliver notice of such request to all Investors holding Registrable Securities, if any, who shall then have thirty (30) days to notify the underwriters controlling Company in writing of their desire to be included in such registration. If the applicable lock-up agreement
(iv) request for registration contemplates an underwritten public offering, the Company shall state such in the written notice and in such event the right of any Investor to participate in such registration shall be conditioned upon their participation in such underwritten public offering and the inclusion of their Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use its best efforts to expeditiously effect the registration of all Registrable Securities whose holders request participation in such registration under the Securities Act and to qualify such Registrable Securities for sale under any state blue sky law; provided, however, that the Company shall not be required to file effect registration pursuant to a request under this Section 2 more than three (3) times for the holders of the Registrable Securities as a group. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within ninety (90) days after the effective date of a registration statement if filed by the Company covering a firm commitment underwritten public offering. The Company may postpone the filing of such a registration statement, or the transactions contemplated by effectiveness of any registration statement pursuant to this Section 2 for a reasonable time period, provided that such filing, would postponements shall not exceed ninety (90) days in the good faith judgment aggregate during any twelve (12) month period, if (i) the Company has been advised by legal counsel that such filing or effectiveness would require disclosure of a material financing, acquisition or other corporate transaction, and the Board of Directors of the Company be contrary to applicable rules or law;
(v) determines in good faith that such disclosure is not in the best interests of the Company shall not be required to file a registration statement if the filing of such registration statement, and its shareholders or the transactions contemplated by such fling, would in the good faith judgment of (ii) the Board of Directors of the Company result determines in good faith that there is a breach valid business purpose or reason for delaying filing or effectiveness. A registration will not count as a requested registration under this Section 2(a) until the registration statement relating to such registration has been declared effective by the Commission at the request of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registrationinitiating Investors; provided, however, that if a majority interest of the lead participating Investors of Registrable Securities shall request, in writing, that the Company withdraw a registration statement that has been filed under this Section 2(a) but not yet been declared effective because of a material adverse change in the condition, business or prospects of the Company and such request is made promptly after the requesting Investors learn of such change, a majority interest of such Investors may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein and unless the requesting Investors agree to pay the incremental costs associated with such withdrawal and subsequent reinstatement or filing, it will count as one (1) requested registration.
(b) If a requested registration involves an underwritten public offering and the managing underwriter of an such offering involving a Demand Registration advises the Holders that have requested such registration determines in good faith that the number of Ordinary Shares securities sought to be offered should be limited due to market conditions, then the number of securities to be included in such underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, however, that the Company intends shares to be excluded shall be determined in the following sequence: (i) first, securities held by any other Persons (other than the Investors holding Registrable Securities) not having registration rights or having contractual, incidental "piggy back" rights to include such securities in addition the registration statement, (ii) second, shares sought to be registered by the total Company, (iii) third, Registrable Securities of Investors who did not make the original request for registration, and (iv) fourth, Registrable Securities of Investors who requested such registration pursuant to Section 2(a), it being understood that no shares shall be registered for the account of the Company or any shareholder other than the Investors unless all Registrable Securities for which Investors have requested registration have been registered. If there is a reduction of the number of Registrable Shares Securities pursuant to clauses (i), (iii) or (iv), such reduction shall be made on a pro rata basis (based upon the aggregate number of shares of Common Stock or Registrable Securities held by the holders in each tranche and subject to the priorities set forth in the preceding sentence).
(c) With respect to a request for registration pursuant to Section 2(a) that is for an underwritten public offering, the Holders intend to include is such as (1) would materially and adversely affect managing underwriter shall be chosen by the price Investors holding not less than a majority of the Ordinary Shares Registrable Securities to be offered sold in such offering, subject to the Company's consent, which such consent shall not be unreasonably withheld. The Company may not cause any other registration of securities for sale for its own account (other than a registration effected solely to implement an employee benefit plan or a transaction to which Rule 145 of the Securities Act is applicable) to become effective within one hundred eighty (ii180), days following the effective date of any registration required pursuant to this Section 2 or such lesser period as may be consented to by the managing underwriter.
(d) result An Investor requesting registration pursuant to Section 2(a) shall provide all such information and materials and shall take all such actions as may be reasonably required in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise order to permit the Company to comply with all applicable requirements of the Commission and may requireto obtain any desired acceleration of such registration statement. Specifically, by written notice to the Company accompanying may require such adviceInvestor to furnish the Company with such information regarding the Investor and the distribution of its securities as the Company may from time to time reasonably request and as required by the Securities Act, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand RegistrationExchange Act or the Commission.
Appears in 1 contract
Sources: Registration Rights Agreement (Eagle Test Systems, Inc.)
Demand Registrations. (ai) Each At any time from and after (i) the date 180 days after the consummation by the Company of an underwritten initial public offering of its Common Stock or (ii) the first anniversary of the Closing Date, whichever occurs earlier, any Holder shall have or Holders who own, in the right (aggregate, at least a majority of the "Demand Right") during Registrable Securities may elect, by giving written notice thereof to the term of this Agreement Company, to require the Company to file use its reasonable best efforts to register all or a registration statement portion of its Registrable Securities under the Securities Act in respect so long as such registration is expected to yield gross proceeds to such Holder(s) of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company)$5,000,000. Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from Promptly following such Holder demanding that the Company so register the number of Registrable Shares specified in such requestelection, the Company shall file with (1) give notice to each other Holder of Registrable Securities, if any, of such election, which notice shall set forth the Commission identity of the electing Holders, and thereafter (2) use its reasonable best efforts to cause to be declare declared or become effective promptly under the Securities Act a registration statement (a "Demand Registration") providing for the registrations registration of, and the sale in accordance with the intended method or methods of all distribution thereof by the electing Holders of, the Registrable Shares as such Holder shall have demanded be registeredSecurities. The Company may satisfy its obligation shall be required to file a Demand Registration through an automatic shelf cause to become effective pursuant to this Section 2(a) no more than one registration statement upon any election pursuant to this Section 2(a)(i) by the Softbank Entities and no more than one registration statement upon any election pursuant to this Section 2(a)(i) by any Holder other than a Softbank Entity unless the Company is eligible to register the Registrable Securities on form F-3 within the meaning of Rule 405 Form S-3 under the Securities Act, in which case the Holders shall have the unlimited right to require such registrations. All requests made Notwithstanding the foregoing, the Company shall not be obligated to register Registrable Securities on Form S-3 under the Securities Act upon any election pursuant to this Section 3.01 (a2(a)(i) shall specify if the amount of Company has registered Registrable Securities on Form S-3 or any other form under the Registrable Shares Securities Act twice in any twelve month period upon elections pursuant to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringthis Section 2(a)(i).
(bii) Anything in this Agreement In the event of any registration of Registrable Securities pursuant to the contrary notwithstandingSection 2(a)(i) hereof, the Company shall 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 entitled issued by the Company, are held in the Company's treasury or are then outstanding and held by other persons) to postpone and delay 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); provided, however, that any other Holder of Registrable Securities may elect, by giving written notice to such effect to the Company no later than 15 business days after the Company shall have given the notice referred to in clause (1) of Section 2(a)(i), to have such Holder's Registrable Securities included in such registration, in which case such Holder shall be treated for all purposes hereunder as having made a demand for registration pursuant to this Section 2(a).
(iii) In the event that, following any election pursuant to Section 2(a)(i) hereof but prior to the filing of any Demand Registration until the earliest practicable time at which a registration statement in respect of such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereofelection, (iiA) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impedein its reasonable judgment and in good faith, delay or otherwise resolves that the filing of such registration statement and the offering of Registrable Securities pursuant thereto would materially interfere with any pending or contemplated financing, significant acquisition, corporate reorganization or other similar transaction involving the Company, and (yB) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After gives the expiration Holders having made such election written notice of any such postponement or delay and without any further request from determination (which notice shall include a Holdercopy of such resolution), the Company shall effect shall, notwithstanding the provisions of Section 2(a)(i) hereof, be entitled to postpone for up to 90 days the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration registration statement otherwise required to be declared effective as promptly as practicable unless such Holder shall have, prior prepared and filed by it pursuant to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(cSection 2(a)(i) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registrationhereof; provided, however, that no such postponement may be effected if any other postponement of a registration pursuant to this Section 2 was in effect during the lead underwriter 12 months immediately preceding the commencement of such postponement, unless any Holders having made elections during the previous postponement shall have had the opportunity to register their Registrable Securities pursuant to an offering involving a Demand Registration advises the Holders that have requested such effective registration that the number of Ordinary Shares that the Company intends to include in addition statement prior to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationcurrent postponement.
Appears in 1 contract
Sources: Registration Rights Agreement (Softbank Holdings Inc Et Al)
Demand Registrations. (a) Each Holder At any time and from time to time following the last day of the Holding Period, the Holders’ Representative shall have the right by delivering a written notice to the Company (the a "Demand RightNotice") during the term of this Agreement to require the Company to, pursuant to file a registration statement the terms of this Agreement, register under and in accordance with the provisions of the Securities Act in respect of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in Securities Beneficially Owned by Holders and requested by such request, the Company shall file with the Commission and thereafter use its best efforts to cause Demand Notice to be declare effective promptly a registration statement so registered (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that in respect of three out of the four Demand Registrations to which the Holders are entitled under this Agreement, a Demand Notice may only be made if the lead underwriter amount of an Registrable Securities requested to be registered by the Holders’ Representative is reasonably expected to generate aggregate gross proceeds (prior to deducting underwriting discounts and commissions and offering involving expenses) of at least $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 Registration advises the Holders that have requested such registration that the number of Ordinary Shares that Notice, the Company intends shall give written notice of such Demand Notice to include in addition to the total number all Holders of record of Registrable Shares that Securities.
(b) Following receipt of a Demand Notice, the Holders intend Company shall use its reasonable best efforts to include file, as promptly as reasonably practicable, but not later than 30 days after receipt by the Company of such Demand Notice (subject to paragraph (f) 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 as (1) a registration and if there is no then-currently effective shelf registration statement on file with the SEC which would materially and adversely affect cover all the price of the Ordinary Shares Registrable Securities requested to be offered or registered) (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration."
Appears in 1 contract
Sources: Registration Rights Agreement (Moneygram International Inc)
Demand Registrations. (ai) Each At any time after the earlier of (x) March 31, 2007 or (y) one (1) year after the consummation by the Company of an initial public offering of its Common Stock pursuant to an effective registration statement under the Securities Act, any Holder or Holders of Registrable Securities shall have the right (to elect, by giving written notice thereof to the "Demand Right") during the term of this Agreement Company, to require the Company to file use its reasonable best efforts to register all or a registration statement portion of its Registrable Securities under the Securities Act in respect of all or some of Act; provided, however, that (i) if the Company is not eligible to register the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of Securities on Form S-3 under the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such requestSecurities Act, the Company shall file with be obligated to register the Commission Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 25% or more of the then-outstanding Registrable Securities; and thereafter (ii) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $7,500,000. Promptly following such election, the Company shall (1) give notice to each other Holder of Registrable Securities of such election, which notice shall set forth the identity of the electing Holders, and (2) use its reasonable best efforts to cause to be declare declared or become effective promptly under the Securities Act a registration statement (a "Demand Registration") providing for the registrations registration of, and the sale in accordance with the intended method or methods of all distribution thereof by the electing Holders of, the Registrable Shares as such Holder shall have demanded Securities elected to be registeredincluded therein by the Holder. The Company may satisfy its obligation shall be required to file a Demand Registration through an automatic shelf cause to become effective pursuant to this Section 2(a)(i) no more than two (2) registration statement statements in the aggregate unless the Company is eligible to register the Registrable Securities on form F-3 within the meaning of Rule 405 Form S-3 under the Securities Act, in which case the Holders shall have the unlimited right to require registrations on Form S-3; provided, however, that the Company shall not be obligated to effect any such registration on Form S-3 if the Company has within the twelve (12) month period preceding the date of such request for registration already effected two (2) registrations on Form S-3 (or applicable successor form) at the request of Holders.
(ii) At any time after the earlier of (x) March 31, 2007 or (y) one (1) year after the consummation by the Company of an initial public offering of its Common Stock pursuant to an effective registration statement under the Securities Act, Affymetrix shall have the right to elect, by giving written notice thereof to the Company, to require the Company to use its reasonable best efforts to register all or a portion of its Registrable Securities under the Securities Act in connection with a distribution by Affymetrix of such Registrable Securities to holders of equity securities of Affymetrix (such distribution, a “Spin-off”). All requests made Promptly following such election, the Company shall use its reasonable best efforts to cause to be declared or become effective under the Securities Act a registration statement providing for the registration of, and the sale in accordance with the intended method or methods of distribution thereof by Affymetrix of, the Registrable Securities elected to be included therein by Affymetrix. The Company shall be required to cause to become effective pursuant to this Section 3.01 2(a)(ii) no more than two (a2) registration statements in the aggregate. The rights of Affymetrix contained in this Section 2(a)(ii) shall specify the amount be in addition to its rights as a Holder contained elsewhere in this Agreement, including its rights as a Holder contained in Section 2(a)(i). Affymetrix’s exercise of its demand registration rights pursuant to this Section 2(a)(ii) shall not be deemed to be an exercise of the demand registration rights to the Holders pursuant to Section 2(a)(i).
(iii) Notwithstanding the foregoing, the Company shall not be obligated to register Registrable Shares Securities upon any election pursuant to be registered. The Demand Registration shall be Section 2(a)(i) or Section 2(a)(ii) if fewer than 135 days have elapsed after the effective date of a registration statement registering newly issued or treasury shares of the Company’s Common Stock for purposes of a primary offering (as defined in Section 2(b)(i) hereof) on a firm commitment underwritten public offeringbasis, but only if and to the extent that (x) the underwriting agreement entered into in connection with any such offering expressly prohibited registration of Registrable Securities and (y) no period referred to in this sentence, and no postponement referred to in Section 2(a)(iv) hereof, was in effect during the 12 months immediately preceding the commencement of such 180 day period, unless any Holders having made elections during the previous period or postponement, as the case may be, shall have had the opportunity to register their Registrable Securities pursuant to an effective registration statement prior to the current such period.
(biv) Anything in this Agreement In the event that, following any election pursuant to the contrary notwithstanding, the Company shall be entitled Section 2(a)(i) or Section 2(a)(ii) hereof but prior to postpone and delay the filing of any Demand Registration until the earliest practicable time at which a registration statement in respect of such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereofelection, (iiA) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impedein its reasonable judgment and in good faith, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if resolves that the filing of such registration statementstatement and the offering of Registrable Securities pursuant thereto would be seriously detrimental to the Company, or and (B) the transactions contemplated Company furnishes to the Holders having made such election a certificate signed by such fling, would in the good faith judgment of the Board of Directors President of the Company result in giving notice of such determination (which certificate shall include a breach copy of the Company's license; and
(vi) such resolution), the Company shall not shall, notwithstanding the provisions of Section 2(a)(i) and Section 2(a)(ii) hereof, be required entitled to file a registration statement if postpone for up to 135 days the filing of such any registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares statement otherwise required to be offered prepared and filed by it pursuant to Section 2(a)(i) or (iiSection 2(a)(ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registrationhereof; provided, however, that no such postponement may be effected if any other postponement of a registration pursuant to this Section 2 was in effect during the lead underwriter twelve (12) months immediately preceding the commencement of such postponement, unless any Holders having made elections during the previous postponement shall have had the opportunity to register their Registrable Securities pursuant to an offering involving a Demand Registration advises the Holders that have requested such effective registration that the number of Ordinary Shares that the Company intends to include in addition statement prior to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationcurrent postponement.
Appears in 1 contract
Sources: Registration Rights Agreement (Perlegen Sciences Inc)
Demand Registrations. (a) Each Holder shall have Subject to the right (the "Demand Right") during the term conditions of this Agreement to require Section 8.1, if the Company to shall receive at any time after the date hereof a written request from Holder(s) of at least forty percent (40%) of the Registrable Securities then outstanding that the Company file a registration statement under the Securities Act in respect 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 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 or some of Registrable Securities that the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject Holders request to the provisions of subsection be registered.
(b) belowIf the Holder(s) requesting such registration intends to distribute the Registrable Securities covered by its request by means of an underwriting, as promptly as practicable, but in no event later than 45 days after such Holder(s) shall so advise the Company receives as a written part of the request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 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 conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (a) shall specify the amount unless otherwise mutually agreed by a majority in interest of the Registrable Shares Holders) to be registeredthe extent provided herein. The Demand Registration 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 by the Holder that initially requested the registration (which underwriter or underwriters shall be for a firm commitment underwritten public offeringreasonably acceptable to the Company).
(bc) Anything in The Company shall not be obligated to effect more than two registrations pursuant to this Agreement to the contrary notwithstandingSection 8.1. Further, the Company shall not be entitled obligated to postpone and delay the filing of take any Demand Registration action to effect any registration pursuant to this Section 8.1 until the earliest practicable time at which such Demand Registration can be reasonably effected if to occur of:
(i) the Company date that is conducting or about to conduct an underwritten public offering of securities in which three years after the Holder is entitled to join pursuant to Section 3.02 date hereof, (ii) the first date as of which any other shareholder of the Company is subject to an existing contractual obligation not to engage in exercises a public offeringdemand registration, or (iii) 180 days after the financial statements effective date of the registration statement pertaining to the first underwritten public offering of securities of the Company for the fiscal period most recently ended prior to such written request are not yet availableits own account. Further, or (iv) the Company shall determine that any such filing or not be obligated to effect a demand registration pursuant to this Section 8.1 if the offering of any Registrable Shares would (x) Company furnishes to the Holders a certificate signed by the Chief Executive Officer stating that, in the good faith judgment of the Board of Directors of Board, it would be seriously detrimental to the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed Company and its shareholders for such registration to be effected at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, in which event the Company shall effect have the right to defer the filing of the relevant Demand Registration and registration statement for a 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 use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior give written notice to the effective date Holders of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be any demand made by a Holder during the pendency of any lock-up period imposed in connection with a public offering other holders of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a for registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto)securities.
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.
Appears in 1 contract
Demand Registrations. (a) Each Holder shall have At any time after, and no earlier than, the right first to occur of nine months after (i) the "Demand Right"closing date of the Initial Public Offering or (ii) during the term Company receiving an aggregate of this Agreement to require no less than $10,000,000 in cash in a single transaction or a series of related transactions exempt from the registration requirements of the Securities Act at a time when its equity securities are registered under Section 12 of the Exchange Act, holders of Registrable Shares constituting at least a majority of the Registrable Shares then outstanding may, on two occasions, request the Company to file a registration statement register for sale under the Securities Act in respect of all or some any portion of the Registrable Shares held by such Holder (but not less than a number requesting holder or holders for sale in the manner specified in such notice, provided, however, that the expected aggregate proceeds of any offering and registration of Registrable Shares that represents made pursuant to this Section 3 shall be at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection $10,000,000.
(b) belowNotwithstanding anything to the contrary contained herein, as the Company shall not be required to effect a registration pursuant to this Section 3 during the periods commencing (i) 60 days prior to the estimated filing date of, and ending on the date which is nine months after the effective date of a registration statement filed by the Company covering an underwritten public offering and (ii) when the Company receives, at a time when its equity securities are registered under Section 12 of the Exchange Act, an aggregate of no less than $10,000,000 in cash in a single transaction or in a series of related transactions exempt from the registration requirements of the Securities Act pursuant to which the Company is contractually required to promptly as practicablefile a registration statement for the resale of the shares sold in such exempt transaction(s) and ending nine months thereafter.
(c) Following receipt of any notice under this Section 3, but in no event later than 45 the Company shall promptly notify all holders of Registrable Shares from whom notice has not been received and such holders shall then be entitled within 30 days after receipt of such notice from the Company receives a written to request from such Holder demanding that the Company so 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 request, notice (and in all notices received by the Company from other holders within 30 days after the receipt of such notice by such holders). The Company shall file with be obligated to register Registrable Shares pursuant to this Section 3 on two occasions only and not more than once during any 12-month period; provided, however, that the Commission and thereafter use its best efforts to cause to aforesaid obligations shall be declare effective promptly deemed satisfied only when a registration statement (a "Demand Registration") providing for the registrations of covering all Registrable Shares specified in notices received as such Holder aforesaid, for sale in accordance with the method of disposition specified by the requesting holders, shall have demanded be registeredbecome effective and, if such method of disposition is a firm commitment underwritten public offering, all such shares (other than shares subject to any over allotment option) shall have been sold pursuant thereto. The Company shall not be obligated to register, pursuant to this Section 3, the Registrable Shares of any holder who fails to provide promptly to the Company such information as the Company may satisfy its obligation reasonably request at any time to file enable the Company to comply with any applicable law or regulation or to facilitate preparation of the registration statement.
(d) 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 Demand Registration through an automatic shelf registration statement on form F-3 within the meaning part of Rule 405 under the Securities Act. All requests their request made pursuant to this Section 3.01 3 and the Company shall include such information in the written notice referred to in paragraph (ab) above. The right of any holder to participate in an underwritten registration pursuant to this Section 3 shall specify be conditioned upon such holder’s agreeing to participate in such underwriting and to permit inclusion of such holder’s Registrable Shares in the amount 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 registered. The Demand Registration sold in such offering may designate the managing underwriter of such offering, subject to the approval of the Company, which approval shall not be for a firm commitment underwritten public offeringunreasonably withheld or delayed.
(be) Anything in A registration statement filed pursuant to this Agreement Section 3 may, subject to the contrary notwithstandingfollowing provisions, the Company shall be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if include (i) shares of Common Stock for sale by the Company is conducting or about to conduct an underwritten public offering of securities in which for the Holder is entitled to join pursuant to Section 3.02 hereofCompany’s own account, (ii) shares of Common Stock held by officers or directors of the Company is subject to an existing contractual obligation not to engage in a public offering, and (iii) shares of Common Stock held by Other Shareholders, in each case for sale in accordance with the financial statements method of disposition specified by the requesting holders. If such registration shall be underwritten, the Company, such officers and directors and Other Shareholders proposing to distribute their shares through such underwriting shall enter into an underwriting agreement in customary form with the representative of the 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 in such registration or if the Commission imposes such a limitation, then the shares of Common Stock held by officers or directors (other than Registrable Shares) of the Company or by Other Shareholders (other than Registrable Shares) and shares of Common Stock to be sold by the Company for the fiscal period most recently ended prior Company’s own account shall be excluded from such registration and the underwriting to the extent so required by such written request are not yet availablemanaging underwriter, or (iv) and unless the holders of such shares of Common Stock and the Company have otherwise agreed in writing, such exclusion shall determine that any be applied first to the shares held by the directors and officers (other than Registrable Shares) to the extent required by such filing or limitation, and if a limitation on the offering number of any Registrable Shares would (x) in shares is still required, then to the good faith judgment shares of Common Stock of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or Other Shareholders (other similar transaction involving the Company, (ythan Registrable Shares) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests extent required by such limitation, and if a limitation on the number of shares is still required, then to the shares of Common Stock of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall have, prior included for the Company’s own account to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be extent required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in limitation. If the good faith judgment managing underwriter determines that marketing factors require a further limitation of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in under this Section 3 or if the Demand Registration Commission requires such a limitation, then Registrable Shares shall be reduced excluded in such manner that the securities to such number which, in the opinion of such underwriters, can be sold without (i) materially 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 Registrable Shares will be excluded prior to any exclusion of Registrable Shares. No Registrable Shares or any other security excluded from the registration and adversely affecting the price underwriting by reason of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to underwriter’s marketing limitation shall be included in such registration shall be allocated pro rata among all requesting Holders on the basis and underwriting. If any holder of Registrable Shares, officer, director or Other Shareholder who has requested inclusion in such registration as provided above, disapproves of the relative number terms of the underwriting, such holder of securities originally requested may elect to be registered withdraw therefrom by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by timely written notice to the Company accompanying such advice, that, to and the extent necessary to meet such limitation, newly issued Ordinary Shares managing underwriter. The securities so withdrawn shall also be excluded withdrawn from such Demand Registrationregistration.
Appears in 1 contract
Demand Registrations. (a) Each Holder shall have At any time after twelve (12) months following the right Commencement Date, by written notice to the Company (the a "Demand RightNotice") during the term of this Agreement to require Holder may request the Company to file affect a registration statement under the Securities Act in respect of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 Securities under the Securities ActAct for sale. All requests made pursuant to this Section 3.01 (a) shall specify the amount Upon receipt of the Registrable Shares to be registered. The any Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstandingNotice, the Company shall be entitled will within 45 days use reasonable commercial efforts to postpone and delay file with the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in SEC a public offering, (iii) the financial statements registration statement covering all of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Registerable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless such Holder shall haverequests, prior to the effective date of such Demand Registrationprovided, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01however:
(i) the Company shall not be required obligated to file a and cause to become effective any registration statement initiated pursuant to this Section 5, within 180 ninety (120) days of the effective date of a prior any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) for the registration of offerings of Company securities was filed as a result of a request for a Demand Registration by a Holder and not withdrawn or within 180 days of the effective date of a prior registration statement registering Ordinary Shareswas declared effective;
(ii) the Company may delay the filing or effectiveness of each registration statements initiated pursuant to this Section 5 if at such time (i) the Company is engaged, or has fixed plans to engage within one-hundred and eighty (180) days of the date of such Registration Request, in a Holder shall not firm commitment underwritten public offering of Primary Shares in which the holders of Registrable Shares may include Registrable Shares or (ii) the Company reasonably determines that such registration and offering would (a) be entitled commercially unreasonable due to request a Demand Registration until after twelve months from the Effective Date,financial position of the Company at the time of receipt of such request, or (b) interfere with any material transaction involving the Company as approved by the Board of Directors;
(iii) no request for a Demand Registration may In the event that registration on Form S-3 is not permitted under the Securities Act and the regulations promulgated there under, the securities will be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreementregistered at such time that short form registration is permitted.
(ivb) the Company The terms "register," "registered," and "registration" as used in this Agreement shall not be required refer to file a registration effected by preparing and filing a registration statement if in compliance with the filing of such a registration statementSecurities Act and applicable rules and regulations there under, and the declaration or the transactions contemplated by such filing, would in the good faith judgment ordering of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing effectiveness of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.
Appears in 1 contract
Demand Registrations. (a) Each At any time and from time to time during the Effective Period, the Holder shall have the right by delivering a written notice to the Company (the "a “Demand Right"Notice”) during the term of this Agreement to require the Company to, pursuant to file a registration statement the terms of this Agreement, register under and in accordance with the provisions of the Securities Act in respect of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in Securities Beneficially Owned by the Holder and requested by such request, the Company shall file with the Commission and thereafter use its best efforts to cause Demand Notice to be declare effective promptly a registration statement so registered (a "“Demand Registration") providing for the registrations of all Registrable Shares as such Holder ”). A Demand Notice shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall also specify the amount expected method or methods of disposition of the applicable Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringSecurities.
(b) Anything in this Agreement Following receipt of a Demand Notice, the Company shall use its commercially reasonable efforts to file, as promptly as reasonably practicable, but not later than 60 days after receipt by the Company of such Demand Notice (or, if the Company is eligible for Short-Form Registration (as defined below), not later than 30 days after receipt by the Company of such Demand Notice), 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) relating to the contrary notwithstandingoffer and sale of the Registrable Securities requested to be included therein by the Holder in accordance with the method or methods of disposition of the applicable Registrable Securities elected by the Holder, and the Company shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(c) If any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a fully marketed underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holder 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 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, then there shall be included in such offering the number or dollar amount of Registrable Securities that in the good faith opinion of such managing underwriter(s) can be sold without so adversely affecting such offering.
(d) The Holder shall be entitled to request no more than four Demand Registrations on the Company, and in no event shall the Company be required to effect more than one Demand Registration in any nine month period.
(e) In the event of a Demand Registration, the Company shall be entitled required to postpone and delay maintain the filing continuous effectiveness of any the applicable Registration Statement for a period of at least 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.
(f) Subject to Section 2.5, in addition to the Demand Registration until Registrations provided pursuant to this Section 2.1, at all times from the earliest practicable time at 60 day anniversary of the date on which such Demand Registration can be reasonably effected if (i) the Company is conducting becomes eligible to use a Short-Form Registration (as defined below) (such date the “Eligible Date”) through the end of the Effective Period, the Company will use its commercially reasonable efforts to qualify for registration on Form S-3 or about any comparable or successor form or forms or any similar short-form registration (including pursuant to conduct an underwritten public offering Rule 415 under the Securities Act) (“Short-Form Registration”) and such Short-Form Registration shall be filed by the Company on or before the 60 day anniversary of securities the Eligible Date and constitute a shelf registration statement providing for the registration of, and the sale on a continuous or delayed basis of, the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities in which accordance with the methods of distribution elected by the Holder. Upon filing a Short-Form Registration, through the end of the Effective Period, the Company will use its commercially reasonable efforts to keep such Short-Form Registration effective with the SEC at all times and to refile such Short-Form Registration upon its expiration, and to cooperate in any shelf take-down by amending or supplementing the prospectus statement related to such Short-Form Registration as may reasonably be requested by the Holder is entitled to join pursuant to Section 3.02 hereofor as otherwise required.
(g) If, (ii) at any time during the Effective Period after the Company is subject to an existing contractual obligation not to engage has effected a Short-Form Registration in a public offering, (iiiaccordance with Section 2.1(f) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holderhereof, the Company shall effect receive a request form the filing Holder to facilitate a sale, pursuant to an existing shelf registration statement, of all or a portion of the relevant Demand Registration Registrable Securities registered thereon and specifying the intended method of disposition thereof as an underwritten block trade (such request, a “Block Trade Shelf Takedown”), then the Company shall use its best commercially reasonable efforts to cause any such Demand Registration to be declared effective facilitate, as promptly expeditiously as practicable unless such Holder shall have, prior to possible within 3 Business Days after the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) that the Company shall not be required to file receives a registration statement within 180 days Block Trade Shelf Takedown, or such other period as is reasonably determined by the agreement of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of and the Company, except with the consent sale of all Registrable Securities for which the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file Holder has requested a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related theretosale under this Section 2.1(g).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.
Appears in 1 contract
Sources: Investor Rights Agreement (Gaming & Leisure Properties, Inc.)
Demand Registrations. (a) Each Holder shall have From time to time upon request of the right (the "Demand Right") during the term of this Agreement to require Stockholder, the Company shall prepare and file with the SEC a Registration Statement covering the resale of the Registrable Securities for an offering to file be made on a registration statement continuous basis pursuant to Rule 415. Unless the Company is eligible to use Form S-3 (or a successor form) under the Securities Act in respect of all or some of (which registrations are covered under Section 4.2(b) below), such Registration Statement shall be on Form SB-2 under the Securities Act (unless the Company is not then eligible to register for resale the Registrable Shares held by Securities on Form SB-2, in which case such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Companyregistration shall be on another appropriate form). Subject to Any such Registration Statement shall list as Selling Stockholders such Holders as the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such Stockholder may request, the . The Company shall file with the Commission and thereafter use its best efforts to cause such Registration Statement to be declare declared effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount of the Registrable Shares to be registered. The Demand Registration shall be for a firm commitment underwritten public offering.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay Act as promptly as possible after the filing of any Demand Registration until the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration thereof and shall use its best efforts to cause any keep such Demand Registration Statement continuously effective under the Securities Act until the earlier of (a) the date that is twenty-four (24) months following the date on which such Registration Statement becomes effective and (b) until all Registrable Securities have been sold or may be sold without volume restrictions pursuant to be declared effective Rule 144(k) promulgated under the Securities Act, as promptly as practicable unless such Holder shall have, prior determined by counsel to the effective date Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to Company’s transfer agent and the Stockholder (the “Effectiveness Period”). The Company shall promptly notify the Stockholder via e-mail of the effectiveness of such Demand RegistrationRegistration Statement. Notwithstanding the foregoing, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file effect registration pursuant to a request under this Section 4.2(a) more than two (2) times during any twelve (12) month period. A registration statement within 180 days of the effective date of a prior registration statement filed will not count as a result of a request for a Demand requested registration under this Section 4.2(a) unless and until the Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled Statement relating to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or has been declared effective by the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto)Commission.
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.
Appears in 1 contract
Demand Registrations. (a) Each Holder shall have the right (the "Demand Right") during the term of this Agreement to require the Company to file a registration statement under the Securities Act in respect of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection this Article II, at any time, (bi) SFDS may request registration under the Securities Act of all or any portion of its Registrable Securities on Form S-1 (excluding a Shelf Registration) or any successor long-form registration statement (“Long-Form Registrations”) subject to and in accordance with Section 2.1(b) and (ii) SFDS 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 SFDS 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. The Company will, as promptly as practicable, but practicable (and in no event later than 45 60 days after following receipt of such demand in the case of a Long-Form Registration and 30 days in the case of a Shelf Registration), prepare and file the applicable registration statement. If at the time of such request the Company receives is a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such request, the Company shall file with the Commission and thereafter use its best efforts to cause to be declare effective promptly a registration statement (a "Demand Registration") providing for the registrations of all Registrable Shares as such Holder shall have demanded be registered. The Company may satisfy its obligation to file a Demand Registration through an automatic shelf registration statement on form F-3 well-known seasoned issuer within the meaning of Rule 405 under the Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount , such Shelf Registration may, unless otherwise requested by SFDS, cover an unspecified number of the Registrable Shares shares of Common Stock to be registered. The Demand Registration shall be for a firm commitment underwritten public offeringsold by the Company and SFDS.
(b) Anything If a Demand Registration relates to an underwritten offering or if SFDS makes a request for an underwritten take-down from a Shelf Registration in this Agreement accordance with Section 2.2(b) (each, a “Shelf Take-down”), and the managing underwriters advise the Company in writing that in their opinion the number of Registrable Securities and, if permitted hereunder, other securities requested to be included in such offering exceeds the contrary notwithstandingnumber of Registrable Securities and other securities, if any, that can be sold in an orderly manner in such offering, then the Company shall include (i) first, all Registrable Securities requested to be entitled to postpone and delay the filing of any Demand Registration until the earliest practicable time at which sold by SFDS, if any, in such Demand Registration up to that number of securities that in the opinion of such underwriters can be reasonably effected if (i) sold in such offering without adversely affecting the Company is conducting or about to conduct an underwritten public marketability of the offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, and (ii) the Company is subject to an existing contractual obligation not to engage in a public offeringsecond, (iii) the financial statements of the Company for the fiscal period most recently ended prior to such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration requested to be declared effective as promptly as practicable unless such Holder shall have, prior to the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a Demand Registrationincluded.
(c) Notwithstanding anything contained to the contrary in this Section 3.01:
Agreement, (i) the Company shall not be required obligated to file effect any Demand Registration during any period in which the Company is restricted from effecting a registration statement within 180 registration, offering or sale of shares of Common Stock pursuant to a lock-up or similar agreement entered into in connection with any offering or sale of Common Stock registered with the Commission; provided, that the restriction period thereunder shall not exceed one hundred eighty (180) days of after the effective date of the Company’s Initial Public Offering or ninety (90) days after the effective date of any other public offering (unless the managing underwriter advises otherwise), and (ii) the Company may postpone the filing or the effectiveness of a prior registration statement filed as for a result Demand Registration or suspend the use of a Prospectus that is part of a Shelf Registration (and therefore suspend sales of Registrable Securities thereunder in accordance with Section 2.1(a)) during any Blackout Period; provided that only in such event, SFDS shall be entitled to withdraw such request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder and, if so withdrawn, such Demand Registration shall not be entitled to request a count against the total number of Demand Registration until after twelve months from the Effective Date,
(iii) no request Registrations provided for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related theretoSection 2.1(a).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a If any Demand Registration advises or a Shelf Take-down is an underwritten offering, then SFDS shall have the Holders that have requested right to select the managing underwriters to administer such registration that offering subject to the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price consent of the Ordinary Shares to Company, which consent shall not be offered unreasonably withheld, conditioned or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of themdelayed.
(e) The Company shall be entitled to include newly issued Ordinary Shares in For so long as SFDS holds any Demand Registration; providedRegistrable Securities, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may requireits Affiliates shall not, by without SFDS’s prior written notice to consent, enter into any agreement providing another Person with registration rights that would conflict with the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registrationprovisions of this Article II.
Appears in 1 contract
Sources: Registration Rights Agreement (Smithfield Foods Inc)
Demand Registrations. (a) Each Holder shall have the right (the "Demand Right") during the term of this Agreement At any time and from time to require the Company to file a registration statement under the Securities Act in respect of all or some of the Registrable Shares held by such Holder (but not less than a number of Registrable Shares that represents at least 2.65% of the then outstanding Ordinary Shares of the Company). Subject to the provisions of subsection (b) below, as promptly as practicable, but in no event later than 45 days time after the Company receives a written request from such Holder demanding that the Company so register the number of Registrable Shares specified in such requestClosing, the Company shall file with shall, upon the Commission and thereafter written demand of the Investor, use its best efforts to cause to be declare effective promptly a effect the registration statement (a "Demand RegistrationDEMAND REGISTRATION") providing for under the registrations Act (by means of all a "shelf" registration statement pursuant to Rule 415 under the Act, if so requested and if the Company is eligible therefor at such time) of such number of Registrable Shares Securities (as such Holder defined below) then beneficially owned by the Investor as shall have demanded be registered. The indicated in a written demand sent to the Company may satisfy its obligation by the Investor; PROVIDED, HOWEVER, that: (a) the Company shall be obligated under this Agreement to effect no more than (i) two Demand Registrations so long as the Company is not eligible to file Form S-3 under the Act, and (ii) five Demand Registrations if the Company is eligible to file Form S-3; and (b) a Demand Registration through an automatic shelf registration statement on form F-3 within shall not count as such until it has become effective, except that if, after it has become effective, the meaning offering of Rule 405 under the Registrable Securities Act. All requests made pursuant to this Section 3.01 (a) shall specify the amount such registration is interfered with by any stop order, injunction or other order or requirement of the Registrable Shares SEC or any other Government Authority, such registration shall be deemed not to be registeredhave been effected unless such stop order, injunction or other order or requirement shall subsequently have been vacated or otherwise removed. The If a Demand Registration shall is initiated by the Investor, no other securities may be for a firm commitment underwritten public offering.
(b) Anything offered in this Agreement to such offering by the contrary notwithstandingCompany without the Investor's consent. Upon receipt of the written demand of the Investor, the Company shall be entitled to postpone and delay expeditiously effect the filing of any Demand Registration until registration under the earliest practicable time at which such Demand Registration can be reasonably effected if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which the Holder is entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a public offering, (iii) the financial statements Act of the Company for the fiscal period most recently ended prior to Registrable Securities covered by such written request are not yet available, or (iv) the Company shall determine that any such filing or the offering of any Registrable Shares would (x) in the good faith judgment of the Board of Directors of the Company, impede, delay or otherwise interfere with any pending or contemplated financing, acquisition, corporate reorganization or other similar transaction involving the Company, (y) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (z) require disclosure of material nonpublic information which, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders. After the expiration of any such postponement or delay and without any further request from a Holder, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any have such Demand Registration to be declared registration become and remain effective as promptly as practicable unless such Holder provided in Section 8.8. The Investor shall have, prior have the right to select the effective date of such Demand Registration, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute underwriters for a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement within 180 days of the effective date of a prior registration statement filed as a result of a request for a Demand Registration by a Holder or within 180 days of the effective date of a prior registration statement registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder during the pendency of any lock-up period imposed in connection with a public offering of securities of the Company, except with the consent of the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration statement if the filing of such a registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company be contrary to applicable rules or law;
(v) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such fling, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's license; and
(vi) the Company shall not be required to file a registration statement if the filing of such registration statement, or the transactions contemplated by such filing, would in the good faith judgment of the Board of Directors of the Company result in a breach of the Company's financing or other debt documents (including, any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 3.01, if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the total number of Registrable Shames that the Holders intend to include is such as (i) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the number of Registrable Shares to be registered in the Demand Registration shall be reduced to such number which, in the opinion of such underwriters, can be sold without (i) materially and adversely affecting the price of the Ordinary Shares to be offered or (ii) resulting in a greater number of Ordinary Shares being registered than the market could absorb. Such Registrable Shares to be included in such registration shall be allocated pro rata among all requesting Holders on the basis of the relative number of securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, that if the lead underwriter of an offering involving a Demand Registration advises the Holders that have requested such registration that the number of Ordinary Shares that the Company intends to include in addition to the total number of Registrable Shares that the Holders intend to include is such as (1) would materially and adversely affect the price of the Ordinary Shares to be offered or (ii) result in a greater number of Ordinary Shares being offered than the market could reasonably absorb, then the Holders will promptly, so advise the Company and may require, by written notice to the Company accompanying such advice, that, to the extent necessary to meet such limitation, newly issued Ordinary Shares shall be excluded from such Demand Registration.
Appears in 1 contract
Sources: Investment Agreement (Atlantic Gulf Communities Corp)