Demand Registrations. Apollo may, at any time during the Term of this Agreement, by written notice (a “Demand Notice”) delivered to the Company, require the Company to register under the Securities Act (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing: (i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement; (ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration; (iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and (iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereof.
Appears in 1 contract
Demand Registrations. Apollo may, at any time during Subject to the Term provisions of Section 5 in the event of assignment of this Agreement, by if the Company shall receive a written notice (request from Security Holder requesting that the Company file a “Demand Notice”) delivered Registration Statement relating to Registrable Securities, the Company will as promptly as practicable prepare and file a Registration Statement and use reasonable best efforts to cause the Registration Statement to become effective; subject, however, to the Company, require following provisions:
(1) the Company shall be required to register under file no more than an aggregate of 5 Registration Statements on behalf of Security Holder (or Security Holders in the Securities Act event of an assignment of this Agreement) pursuant to this Subsection 2.A, plus any number of additional Registration Statements (a “Demand Registration”not to exceed an aggregate of an additional 5) all as to which, at the time of the first filing with the SEC, the Security Holder (or part Security Holders in the event of an assignment of this Agreement) and its underwriter(s) have reasonably estimated that the price to the public of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock Securities to be registered sold (before discounts, commissions, and the intended methods of disposition thereof. Notwithstanding anything expenses) will be equal to the contrary in the foregoing:or greater than $50,000,000;
(i2) the Company shall not be required obligated (i) to effect more file a requested Registration in the event that the aggregate number of Registrable Securities to be included in such requested Registration is less than two Demand Registrations during 2 1/2% of the term of this Agreement;
issued and outstanding Common Stock; or (ii) if to prepare or file such Registration Statement or an amendment or supplement thereto, and may suspend sales, at any time when the Company has previously effected reasonably determines (by action of the Company's Board of Directors or an Effected Demand Registration officer duly authorized by the Board of Directors to make such decision) that the filing thereof at the time requested, or the offering of Registrable Securities pursuant thereto, would materially and adversely affect a pending or proposed offering of securities of the Company, an acquisition, merger, recapitalization, consolidation, reorganization or similar transaction relating to this Section 2, the Company shall or negotiations, discussions or pending proposals with respect thereto or require premature disclosure of information not be otherwise required to file another Registration Statement pursuant be disclosed to this Section 2 until 180 days have elapsed from the date on which potential detriment of the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SECCompany; provided, thathowever, if the previous Effected Demand that such period of sale or distribution shall resume after any such suspension for a number of days necessary to keep such Registration was effected effective for permitted sales thereunder for a term of 90 days. The filing of a Registration Statement, or any amendment or supplement thereto, by a “shelf” registration as requested by Apollo, the Company shall may not be required to file another Registration Statement deferred, and the sale and distribution of shares may not be suspended, in each case pursuant to this Section 2 until 180 the foregoing provisions, for more than 60 days have elapsed from after the earlier of abandonment or consummation (A) the date of or the completion of the sale distribution of securities in the case of a public offering) of any of the proposals or transactions described therein or, in any event, for more than 120 days during any one year;
(3) a Registration Statement filed pursuant to a request of Security Holder shall first include all Registrable Common Stock registered pursuant Securities requested to be included by Security Holder and, only after such Effected Demand Registration and (B) inclusion, may, include securities of the date Company being sold for the account of expiration or withdrawal the Company provided, however, that securities to be offered on behalf of the Company will be included in such Registration Statement only to the extent that, in the reasonable opinion of the managing underwriter for the Public Offering of Registrable Securities on behalf of Security Holder, such Effected Demand Registrationinclusion will not materially adversely affect the distribution of Registrable Securities on behalf of Security Holder;
(iii4) each Demand Registration the selection of an underwriter for a Public Offering of Registrable Securities by Security Holder shall be subject to the approval of the Company, which shall not be unreasonably withheld;
(5) for at least one million shares purposes of Registrable Common Stockparagraph (1) of this Subsection A, if a requested Registration Statement is filed and the Company otherwise complies with its obligations hereunder, but the Registration Statement is withdrawn by Security Holder due to a delay in the offering requested by the Company for a period of more than 15 business days pursuant to Section 2, then no requested Registration Statement shall be deemed to have been filed; and
(iv6) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period no Other Holder (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up entitled to 90 days; provided, however, include securities or piggyback in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay demanded by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofSecurity Holder.
Appears in 1 contract
Sources: Termination Agreement (Shell Oil Co)
Demand Registrations. Apollo may, at (a) At any time during after the Term Required Approval is received, and from time to time thereafter, upon the receipt of this Agreement, a written request from the Holders of a majority of the Registrable Securities beneficially owned by written notice (a “Demand Notice”) delivered to the Company, require ▇▇▇▇▇▇▇▇▇▇ and its Affiliates that the Company to register file a Registration Statement under the Securities Act (a “Demand Registration”) covering the registration for the offer and sale of all or part of such ▇▇▇▇▇▇▇▇▇▇'▇ Registrable Securities (a "▇▇▇▇▇▇▇▇▇▇ Demand Registration"), as soon as practicable, the Registrable Common Stock on behalf Company shall give written notice to all other Holders of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a such ▇▇▇▇▇▇▇▇▇▇ Demand Registration for purposes of and shall cause all such Registrable Securities that ▇▇▇▇▇▇▇▇▇▇ and such other Holders have requested, which written request must be received by the Company no later than 30 days after the Company shall have given the aforesaid notice, to be registered under the Act, subject to and in accordance with the terms, conditions, procedures and limitations contained in this Agreement, including as set forth in Section 9 below. Three ▇▇▇▇▇▇▇▇▇▇ Demand Registrations are entitled to be effected pursuant to this Section 2. All requests for Demand Registrations made 2 and a registration requested pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company shall not be required deemed to effect more than two Demand Registrations during have been effected unless a Registration Statement with respect thereto has become effective, and remained continuously effective without interruption in accordance with the term provisions of Section 5(a) hereof, or not withdrawn as permitted in accordance with the terms and conditions of this Agreement;
(ii) if . The Holders initiating a ▇▇▇▇▇▇▇▇▇▇ Demand Registration may terminate such ▇▇▇▇▇▇▇▇▇▇ Demand Registration prior to the filing of a Registration Statement relating thereto, or require the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another withdraw promptly any Registration Statement which has been filed pursuant to this Section 2 until 180 days have elapsed but which has not become effective under the Act, and such registration shall not be deemed to be a ▇▇▇▇▇▇▇▇▇▇ Demand Registration if either (i) the Holders of the Registrable Securities sought to be included in such registration agree to pay the costs and expenses of such registration as set forth in Section 8 below, pro rata in accordance with the number of Registrable Securities sought to be sold by each of them in such registration, subject to the provisions of Section 9 below, or (ii) such withdrawal is accompanied by notice from ▇▇▇▇▇▇▇▇▇▇ that, in the good faith exercise of its reasonable judgment, there has occurred either (A) a material adverse change in the business, results of operations, financial condition or prospects of the Company or (B) a misstatement or omission in any preliminary prospectus (other than with respect to such information supplied in writing by or on behalf of such Holder expressly for use in such preliminary prospectus) which makes it inadvisable to proceed with the registration.
(b) At any time and from time to time after the date which is five years after the date hereof, upon the receipt of a written request from the date on which Holders of a majority of the Registrable Securities beneficially owned by Quilvest and its Affiliates that the Company file a Registration Statement under the Act covering the registration statement filed with for the SEC pursuant to offer and sale of all or part of such Effected Registrable Securities (the "Quilvest Demand Registration was declared effective by the SEC; providedRegistration"), that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollosoon as practicable, the Company shall not give written notice to all other Holders of such Quilvest Demand Registration and shall cause all such Registrable Securities that Quilvest and such other Holders have requested, which written request must be required received by the Company no later than 30 days after the Company shall have given the aforesaid notice, to file another be registered under the Act, subject to and in accordance with the terms, conditions, procedures and limitations contained in this Agreement, including as set forth in Section 9 below. One Quilvest Demand Registration Statement is entitled to be effected pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered and a registration requested pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereof.this
Appears in 1 contract
Demand Registrations. Apollo may, at any time during Subject to the Term provisions of Section 5 in the event of assignment of this Agreement, by if the Company shall receive a written notice (request from Security Holder requesting that the Company file a “Demand Notice”) delivered Registration Statement relating to Registrable Securities, the Company will as promptly as practicable prepare and file a Registration Statement and use reasonable best efforts to cause the Registration Statement to become effective; subject, however, to the Company, require following provisions:
(1) the Company shall be required to register under the Securities Act (a “Demand Registration”) all or part file no more than an aggregate of the Registrable Common Stock 5 Registration Statements on behalf of Apollo and any Security Holder (or Security Holders in the event of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes an assignment of this Section 2. All requests for Demand Registrations made Agreement) pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:Subsection 2.A, plus
(i2) the Company shall not be required obligated (i) to effect more file a requested Registration in the event that the aggregate number of Registrable Securities to be included in such requested Registration is less than two Demand Registrations during 2 1/2% of the term of this Agreement;
issued and outstanding Common Stock; or (ii) if to prepare or file such Registration Statement or an amendment or supplement thereto, and may suspend sales, at any time when the Company has previously effected reasonably determines (by action of the Company's Board of Directors or an Effected Demand officer duly authorized by the Board of Directors to make such decision) that the filing thereof at the time requested, or the offering of Registrable Securities pursuant thereto, would materially and adversely affect a pending or proposed offering of securities of the Company, an acquisition, merger, recapitalization, consolidation, reorganization or similar transaction relating to the Company or negotiations, discussions or pending proposals with respect thereto or require premature disclosure of information not otherwise required to be disclosed to the potential detriment of the Company; PROVIDED, HOWEVER, that such period of sale or distribution shall resume after any such suspension for a number of days necessary to keep such Registration effective for permitted sales thereunder for a term of 90 days. The filing of a Registration Statement, or any amendment or supplement thereto, by the Company may not be deferred, and the sale and distribution of shares may not be suspended, in each case pursuant to this Section 2the foregoing provisions, for more than 60 days after the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of abandonment or consummation (A) the date of or the completion of the sale distribution of securities in the case of a public offering) of any of the proposals or transactions described therein or, in any event, for more than 120 days during any one year;
(3) a Registration Statement filed pursuant to a request of Security Holder shall first include all Registrable Common Stock registered pursuant Securities requested to be included by Security Holder and, only after such Effected Demand Registration and (B) inclusion, may, include securities of the date Company being sold for the account of expiration or withdrawal the Company provided, however, that securities to be offered on behalf of the Company will be included in such Registration Statement only to the extent that, in the reasonable opinion of the managing underwriter for the Public Offering of Registrable Securities on behalf of Security Holder, such Effected Demand Registrationinclusion will not materially adversely affect the distribution of Registrable Securities on behalf of Security Holder;
(iii4) each Demand Registration the selection of an underwriter for a Public Offering of Registrable Securities by Security Holder shall be for at least one million shares subject to the approval of Registrable Common Stock; andthe Company, which shall not be unreasonably withheld;
(iv5) for purposes of paragraph (1) of this Subsection A, if Apollo has exercised Piggy-Back a requested Registration rights pursuant to Section 3 hereofStatement is filed and the Company otherwise complies with its obligations hereunder, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on but the Registration Statement related is withdrawn by Security Holder due to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period a
(6) no Other Holder (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up entitled to 90 days; provided, however, include securities or piggyback in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay demanded by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofSecurity Holder.
Appears in 1 contract
Demand Registrations. Apollo may, at 2.2.1 At any time during the Term of this Agreement, by written notice (a “Demand Notice”) delivered to the Company, require the Company to register under the Securities Act (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice becomes eligible to Apollo stating file a registration statement on Form S-3 until the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used hereinTermination Date, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; providedPrincipal Holder may, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its , request that the Company file a Registration Statement on Form S-3 (a “Demand Notice Registration Statement”) either (i) for an offering of Registrable Shares to be made on a continuous basis pursuant to this Section 2(aRule 415 or (ii) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses effecting a Block Trade or Public Offering of Registrable Shares, subject to Section 4.7. In the event that the Company is not eligible to file a Registration Statement on Form S-3 by May 1, 2007 or if at any time thereafter for a period of six (6) consecutive months (i) the Company is not eligible to file a registration statement on Form S-3 and (ii) there is no effective Registration Statement on Form S-3 on file with the Commission with respect to the Registrable Shares, then, for so long as the conditions recited in clauses (i) and (ii) continue, the Principal Holder shall be entitled to utilize one of its rights to demand registration as provided in Section 2.3.1 for the purpose of effecting a Public Offering of Registrable Shares on whatever form prescribed by the Commission that the Company is then eligible to use, subject to the terms and conditions set forth herein. Such a Public Offering, if effected, shall be counted against the limitation on Demand Registration Statements under Section 2.3.1 and against the limitation on Public Offerings under Section 2.4.3.
2.2.2 Promptly after receipt of notice requesting registration pursuant to Section 7 hereof2.2.1, the Company will give written notice of such requested registration to all other Holders of Registrable Shares, if any. Subject to the terms and conditions set forth herein, including Section 5.3, the Company will use its commercially reasonable efforts to effect the registration under the Securities Act of the Registrable Shares that the Company has been requested to register by the Holders requesting such registration and all other Registrable Shares that the Company has been requested to register by other Holders, so long as written notice is delivered to the Company within five (5) Business Days after the giving of such notice by the Company. If a written notice from a Holder is received by the Company more than five (5) Business Days after the Company gives notice in accordance with this Section 2.2.2, but not later than five (5) Business Days prior to the effectiveness of the Registration Statement, then the Company will endeavor to register the Registrable Shares that the Company has been requested to register in such notice, so long as the Company would not incur any additional material delays or expense.
Appears in 1 contract
Sources: Registration Rights Agreement (Atlas Air Worldwide Holdings Inc)
Demand Registrations. Apollo may(a) The Initial Holder, any Holder which is an Affiliate of the Initial Holder or the Required Holders of Warrants or Warrant Shares representing at any time during the Term of this Agreement, by least 600,000 Warrant Shares may make a written notice (a “Demand Notice”) delivered request to the Company, require the Company to register for registration of such Registrable Securities under the Securities Act with the Commission for a public offering of Registrable Securities (a “"Demand Registration”) "), provided, however, that the Holders shall have the right to only two Demand Registrations of all or any part of their Registrable Securities. Whenever the Company shall receive a request for a Demand Registration, the Company will promptly give written notice of such registration to all Holders, use its reasonable best efforts to effect the registration under the Securities Act of the Registrable Common Stock on behalf of Apollo and any of its Affiliates Securities with respect to which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All the Company has received written requests for Demand Registrations made inclusion therein within 25 Business Days after such notice is given; provided, however, that the Company will not be required to take any action pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing5.01:
(i) if the Company shall not be required has effected a registration pursuant to effect more than two Demand Registrations during Sections 5.01 or 5.02 within the term 180-day period preceding such request which permitted Holders of this AgreementRegistrable Securities to register Registrable Securities;
(ii) if the Company has previously effected an Effected Demand shall at the time have effective a Shelf Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the Holder or Holders that requested registration statement filed with could effect the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal disposition of such Registration Statement for such Effected Demand Registration;Holder's or Holders' Registrable Securities in the manner requested; or
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delayany Suspension Period permitted under Section 5.01(b); provided further, however, that the Demand Registration shall not constitute a Demand Registration Company will be permitted to satisfy its obligations under this Agreement and shall not reduce Section 5.01 by amending (to the number extent permitted by applicable law) any registration statement previously filed by the Company under the Securities Act so that such registration statement (as amended) will permit the disposition (in accordance with the intended methods of Demand Registrations to which Apollo is otherwise entitled and, none disposition specified as aforesaid) of all of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereof.Registrable
Appears in 1 contract
Sources: Warrant Agreement (Consumers Us Inc)
Demand Registrations. Apollo may, at (a) At any time during after the Term first to occur of this Agreement(1) a Qualified Public Offering or (2) the first anniversary of the Closing Date, by written notice (a “Demand Notice”) delivered to the Company, require First Reserve Stockholders may request in writing that the Company to register effect the registration under the Securities Act (other than a “Demand Registration”shelf registration made pursuant to Rule 415 of the Securities Act) of all or part of their Registrable Securities, specifying in the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify request the number of shares and types of Registrable Common Stock Securities to be registered by each such holder and the intended methods method of disposition thereofthereof (such notice is hereinafter referred to as a "Holder Request"). Notwithstanding anything Upon receipt of such Holder Request, the Company will promptly give written notice of such requested registration to all other holders of Registrable Securities, which other holders shall have the right, subject to the contrary provisions of Section 6.1(h) hereof, to include the Registrable Securities held by them in such registration and thereupon the foregoingCompany will, as expeditiously as possible, use reasonable best efforts to effect the registration under the Securities Act of:
(i) the Registrable Securities which the Company shall not be required has been so requested to effect more than two Demand Registrations during register by the term of this Agreement;First Reserve Stockholders; and
(ii) if all other Registrable Securities which the Company has previously effected an Effected Demand Registration been requested to register by any other holder thereof by written request given to the Company within 30 calendar days after the giving of such written notice by the Company, all to the extent necessary to permit the disposition of the Registrable Securities so to be registered pursuant to this Section 2an Underwritten Offering or by such other method of disposition as the First Reserve Stockholders may specify in the Holder Request; PROVIDED, HOWEVER, that the Company shall not be required obligated to file another Registration Statement a registration statement pursuant to any Holder Request under this Section 6.1(a):
(A) Unless the Company shall have received requests for such registration with respect to at least 10% of the Fully Diluted Common Stock; or
(B) Other than a registration statement on Form S-3 or a successor short form registration statement, within a period of 6 months after the effective date of any other registration statement relating to any registration request under this Section 6.1(a) that was not effected on Form S-3 (or any successor short form).
(C) Within the six month period immediately following the effective date of a registration previously effected by the Company pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;6.1.
(iiib) each Demand Registration shall be for at least one million shares Notwithstanding the foregoing provisions of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof6.1(a), and except as provided in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SECSection 6.1(h), the Company shall not be obligated to file more than an aggregate of four (4) registration statements pursuant to this Section 6.1.
(c) If the Company proposes to effect a Demand Registration Statement before registration requested pursuant to this Section 6.1 by the earlier filing of a registration statement on Form S-3 (or any successor short-form registration statement), the 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 another form of registration statement is of material importance to the success of such proposed offering.
(d) A registration requested pursuant to Section 6.1 (a) will not be deemed to have been effected unless the applicable registration statement has become effective; PROVIDED, that, if after it has become effective, the offering of Registrable Securities pursuant to such registration statement is interfered with by any stop order, injunction or other order or requirement of the date on SEC or other governmental agency or court, such registration will be deemed not to have 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 6.1.
(f) Subject to any existing commitments of the Company, the First Reserve Stockholders shall have the right to select the investment bank (or investment banks) that shall manage the offering (collectively, the "managing underwriter") involving a registration under this Section 6.1; provided that such managing underwriter is reasonably acceptable to the Company.
(g) Whenever a requested registration pursuant to this Section 6.1 involves a firm commitment underwriting (an "Underwritten Offering"), the only shares that may be included in such Underwritten Offering are (i) Registrable Securities, and (ii) securities of the Company which are not Registrable Securities included in such Underwritten Offering upon the lock-up agreementwritten consent of the First Reserve Stockholders ("Company Securities").
(h) If a registration pursuant to this Section 6.1 involves an Underwritten Offering and the managing underwriter shall advise the Company that, in its judgment, the number of shares proposed to be included in such Underwritten Offering should be limited due to market conditions, then the Company will promptly so advise each holder of Registrable Securities that has requested registration, and the Company Securities, if any, shall first be excluded from such Underwritten Offering to the extent necessary to meet such limitation; and if further exclusions are necessary to meet such limitation, Registrable Securities requested to be registered pursuant to Section 6.1(a)(i) or Section 6.1(a)(ii) shall be excluded pro rata, based on the respective numbers of shares of Common Stock as to which registration shall have been requested by such Persons. If the number of Registrable Securities requested to be registered pursuant to Section 6.1(a)(i), but that Apollo has entered into with respect are excluded from registration pursuant to this Section 6.1(h), is equal or greater to 10% of the total number of Registrable Securities requested to be so registered, then such Registration Statement expires, or registration by the date that is 180 days after Company shall not count as a registration for the effective date purposes of such Registration Statement. Section 6.1(b) only.
(i) Notwithstanding the foregoing, this Section 6.1 shall not apply at such time as the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors First Reserve Stockholders own less than 5% of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofFully Diluted Common Stock.
Appears in 1 contract
Demand Registrations. Apollo may, If at any time during after December 31, 1998, -------------------- and prior to January 1, 2006, the Term holder(s) of at least twenty-five percent (25%) of the Registrable Securities shall notify the Company in writing that such holders intend to offer or cause to be offered for sale at least twenty- five percent (25%) of such Registrable Securities and shall request the Company to cause such Registrable Securities to be registered under the Securities Act, the Company will use its best efforts as soon as practicable thereafter to register such Registrable Securities (together with any other Registrable Securities requested by the holders thereof to be included in such registration pursuant to Section 5.3 within 15 days after receipt of a notice from the Company pursuant to Section 5.3) in accordance with the registration procedures set forth in Section 5.5 hereof. Such rights to require registration shall be in addition to the rights of the holders under Sections 5.3 and 5.5 and shall be available to holders, acting pursuant to this Agreement, by written notice on not more than a cumulative total of two (2) occasions; provided, however, that each such registration right shall be deemed to have been used only upon such registration statement becoming and remaining effective in accordance with the provisions hereof. The Company shall, within five days of receipt of a “Demand Notice”) delivered to the Company, require the Company to register under the Securities Act (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration request for purposes of this Section 2. All requests for Demand Registrations made registration pursuant to this Section 2 shall specify the number 5.4, notify each holder of shares of Registrable Common Stock such request and permit each holder to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to join such Effected Demand Registration was declared effective by the SECrequest; provided, thatthat such holder, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 within 15 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal receipt of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant notification, so indicates in writing to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by Company. Notwithstanding the SECforegoing, the Company shall not be obligated to file effect a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” registration pursuant to this Section 2(a5.4 during the period starting with the date thirty (30) shall be days prior to the Company's estimated date of filing of, and ending on a period date three (3) months following the effective date of, a registration statement pertaining to an underwritten pub1ic offering of days securities for the account of up the Company provided that the Company is actively employing in good faith all reasonable efforts to 90 dayscause such registration statement to become effective and that the Company's estimate of the date of filing such registration statement is made in good faith; provided, however, in that no event shall such registration statements filed by the Company delay any Demand Registration shall preclude the holders of the Registrable Securities from exercising a registration right hereunder this Section 5.4 for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereof90 days.
Appears in 1 contract
Sources: Series a Cumulative Convertible Preferred Stock Purchase Agreement (Duoos Timothy R)
Demand Registrations. Apollo may(a) Subject to the terms and conditions hereof (x) solely during any period that Parent is then-ineligible under Applicable Law to register Registrable Securities on Form S-3 pursuant to Section 3.3 or (y) following the expiration of Parent’s obligation to keep the Shelf Registration Statement continuously effective pursuant to Section 3.3(b), at any time during but only if there is no Shelf Registration Statement then in effect, the Term Trustees shall be entitled to make two (2) written requests of this AgreementParent (each, by written notice (a “Demand NoticeDemand”) delivered to the Company, require the Company to register for registration under the Securities Act of an amount of Registrable Securities then held by the Trustees that equals or is greater than the Registrable Amount (a “Demand Registration”); provided that the Trustees shall not make a Demand that would require Parent to register Registrable Securities prior to the expiration of the transfer restrictions set forth in Section 1.2 and provided further that the Trustees shall not be entitled to more than two (2) Demands during any twelve (12) month period. Thereupon Parent will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which Parent has been so requested to register by the Trustees for disposition in accordance with the intended method of disposition stated in such Demand; and
(ii) all or part shares of Parent Common Stock which Parent may elect to register in connection with any offering of Registrable Securities pursuant to this Section 3.1; but, in each case, subject to Section 3.1(f), and all to the extent necessary to permit the orderly disposition (in accordance with the intended methods thereof) of the Registrable Common Stock on behalf Securities and the additional shares of Apollo and any of its Affiliates which hold Registrable Parent Common Stock. Requests from Apollo , if any, to include shares be so registered; provided, that Parent may use a registration statement on Form S-3 or any successor form thereto if Parent would qualify to use such form within thirty (30) days after the date on which the Demand Registration is given and Parent shall not be required to file such registration statement until it is so qualified.
(b) A Demand shall specify: (i) the number of Registrable Securities requested to be registered in a Piggyback such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known, including whether such Demand Registration will be an Underwritten Offering and (iii) the estimated gross proceeds of such Demand Registration, which may not be less than the Registrable Amount.
(c) A Demand Registration shall not constitute be deemed to have been effected and shall not count as a Demand Registration (i) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least sixty (60) days or such shorter period in which all Registrable Securities included in such Demand Registration have actually been sold thereunder (provided, that such period shall be extended for a period of time equal to the period the holder of Registrable Securities refrains from selling any securities included in such registration statement at the request of Parent 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 sixty (60) days after effectiveness, to any stop order, injunction or other order or requirement of the Commission or other Governmental Authority such that no sales are possible thereunder for a period of ten (10) consecutive days or more, other than by reason of any act or omission by the Trustees. If Parent postpones or suspends a Demand Registration, the Trustees shall be entitled to withdraw their Demand and, if the Trustees do so, such Demand shall not count against the limitation on the number of the Trustees’ Demands set forth in Section 3.1(a).
(d) Demand Registrations shall be on such appropriate registration form of the Commission as shall be reasonably selected by Parent and reasonably acceptable to the Trustees.
(e) Parent shall not be obligated to (i) subject to Section 3.1(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration for a period longer than ninety (90) days or (ii) effect any Demand Registration (A) within six (6) months of a “firm commitment” Underwritten Offering in which the Trustees’ were offered “piggyback” rights pursuant to Section 3.2 (subject to Section 3.2(b)) and at least 75% of the number of Registrable Securities requested by the Trustees to be included in such Demand Registration were included and sold, (B) within six (6) months of the completion of any other Demand Registration or any Underwritten Offering pursuant to any Shelf Registration Statement, (C) if, in Parent’s reasonable judgment, it is not feasible for Parent to proceed with the Demand Registration because of the unavailability of audited or other required financial statements or other required information; provided, that Parent shall use its reasonable best efforts to obtain such financial statements or information as soon as practicable or (D) for an amount that is less than the Registrable Amount.
(f) Notwithstanding anything to the contrary contained in this Agreement, Parent shall be entitled to postpone (upon written notice to the Trustees) the filing or the effectiveness of, or suspend the use of, a registration statement for any Demand Registration in the event of a Blackout Period until the expiration of the applicable Blackout Period. The Trustees agree to suspend the use of any registration statement in connection with any sale or purchase, or offer to sell or purchase, Registrable Securities promptly upon receipt of such notice.
(g) If, in connection with a Demand Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) Parent 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 price, timing or distribution of the securities offered, the market for the securities offered or the success of such Demand Registration, then Parent shall include in such registration statement only such securities as Parent is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Trustees, which, in the opinion of the lead managing underwriter(s), can be sold without such an effect; (ii) second, securities Parent proposes to sell; and (iii) third, all other securities of Parent 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 Parent.
(h) Any time that a Demand Registration involves an Underwritten Offering, the Trustees 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 acceptable to Parent (such acceptance not to be unreasonably withheld, conditioned or delayed).
(i) The Trustees may, by written notice to Parent, withdraw their Registrable Securities from a Demand Registration at any time prior to the effectiveness of the applicable registration statement, provided, that the Trustees reimburse Parent for all reasonable, out of pocket expenses incurred by Parent in connection with such Demand Registration. Upon receipt of notice from the Trustees to such effect, or if such withdrawal shall reduce the number of Registrable Securities sought to be included in such Demand Registration below the Registrable Amount, Parent shall cease all efforts to seek effectiveness of the applicable registration statement, unless Parent intends to effect a primary offering of securities pursuant to such registration statement. In any such event, such Demand Registration shall count as a Demand Registration for purposes of this the limitations set forth in Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereof3.1(a).
Appears in 1 contract
Demand Registrations. Apollo may(a) From and after the expiration of the Restricted Period, at subject to the terms and conditions hereof (x) solely during any time during period that the Term Company is then-ineligible under Applicable Law to 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 this Agreementthe Company’s obligation to keep the Shelf Registration Statement continuously effective pursuant to Section 5.3(c), by but only if there is no Shelf Registration Statement then in effect, any Demand Shareholders (“Requesting Shareholders”) shall be entitled to make, in the aggregate across all Demand Shareholders, three (3) written notice requests of the Company (each, a “Demand NoticeDemand”) delivered to the Company, require the Company to register for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders that equals or is greater than the Registrable Amount (a “Demand Registration”) all or part of ). Thereupon the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo Company will, subject to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes the terms of this Section 2. All requests for Demand Registrations made pursuant Agreement, use its reasonable best efforts to this Section 2 shall specify effect the number of shares of Registrable Common Stock to be registered and registration as promptly as practicable under the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoingSecurities Act of:
(i) the Registrable Securities which the Company shall not be required has been so requested to effect more than two Demand Registrations during register by the term Requesting Shareholders for disposition in accordance with the intended method of this Agreementdisposition stated in such Demand;
(ii) if all other Registrable Securities which Company has been requested to register pursuant to Section 5.1(b), but subject to Section 5.1(g); and
(iii) all shares of Ampco Common Stock which the Company has previously effected an Effected Demand Registration may elect to register in connection with any offering of Registrable Securities pursuant to this Section 25.1, 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 Ampco 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 three (3) Business Days after receipt of a Demand, the Company shall not be required give written notice of such Demand to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which all other holders of Registrable Securities. The Company shall include in the registration statement filed for such Demand Registration 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 SEC 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 (i) unless a registration statement 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 registration statement have actually been sold thereunder (provided, that such period shall be extended for a period of time equal to the period the holder of Registrable Securities refrains from selling any securities included in such registration statement at the request of the Company or the lead managing underwriter(s) pursuant to the provisions of this Agreement), (ii) if, after it has become effective, such Effected registration statement becomes subject, prior to one hundred eighty (180) days after effectiveness, to any stop order, injunction or other order or requirement of the Commission or other Governmental Authority such that no sales are possible thereunder for a period of ten consecutive days or more, other than by reason of any act or omission by the applicable Selling Shareholders or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than solely by reason of a failure on the part of the Selling Shareholders.
(d) Demand Registrations shall be effected through the filing of such appropriate registration statement form of the Commission as shall be selected by the Company and reasonably acceptable to the Requesting Shareholders.
(e) The Company shall not be obligated to (i) subject to Section 5.1(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration, for a period longer than one hundred eighty (180) days or (ii) effect any Demand Registration was declared effective (A) within six (6) months of a “firm commitment” Underwritten Offering in which all Demand Shareholders were offered “piggyback” rights pursuant to Section 5.2 (subject to Section 5.2(b)) and at least 75% of the number of Registrable Securities requested by such Demand Shareholders to be included in such Demand Registration were included and sold, (B) within six (6) months of the SECcompletion of any other Demand Registration (including, for the avoidance of doubt, any Marketed Underwritten Offering pursuant to any Shelf Registration Statement) or (C) if, in the Company’s reasonable judgment, it is not feasible for the Company to proceed with the Demand Registration because of the unavailability of audited or other required financial statements or other required information; provided, that, if that the previous Effected Company shall use its reasonable best efforts to obtain such financial statements or information 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 was effected by in the event of a “shelf” registration as requested by ApolloBlackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period under clause (b) of the definition thereof, the Company shall not be required deliver to file another the Demand Shareholders requesting registration a certificate signed by either the chief executive officer or the chief financial officer of the Company certifying that the conditions described in clause (b) of the definition of Blackout Period are met.
(g) If, in connection with a Demand Registration Statement pursuant to this Section 2 until 180 days have elapsed from that involves an Underwritten Offering, the earlier of (Alead managing underwriter(s) advise(s) the date Company that, in its (their) opinion, the inclusion of all of the completion securities sought to be registered in connection with such Demand Registration would adversely affect the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority:
(i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Demand Shareholders (or any other Altor Investor (with respect to its Registrable Securities)), which, in the opinion of the sale lead managing underwriter(s), can be sold without adversely affecting the success thereof, pro rata among such Demand Shareholders (and other Investors) on the basis of all the number of such Registrable Common Stock registered pursuant Securities owned by such Demand Shareholders (and other Investors);
(ii) second, up to the number of Registrable Securities requested to be included in such Effected Demand Registration and (B) by other holders of Registrable Securities, pro rata on the date basis of expiration or withdrawal the amount of such Registration Statement for Registrable Securities owned by such Effected Demand Registrationholders;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stockthird, securities the Company proposes to sell; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant fourth, all other securities of the Company duly requested to Section 3 hereofbe included in such registration statement, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included pro rata on the Registration Statement related basis of the amount of such other securities requested to be included or such Piggy-Back Registration when such Registration Statement is declared effective other allocation method determined by the SECCompany.
(h) Any time that a Demand Registration involves an Underwritten Offering, the Company shall not be obligated to file a Demand Registration Statement before select the earlier of the date on investment banker(s) and manager(s) that will serve as managing underwriters (including which the locksuch managing underwriters will serve as lead or co-up agreement, if any, that Apollo has entered into lead) and underwriters with respect to such Registration Statement expires, or the date that is 180 days after the effective date offering of such Registration Statement. Notwithstanding the foregoingRegistrable Securities; provided, the Company may delay a Demand Registration for the Permitted Delay Period (as defined belowthat such investment banker(s) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(amanager(s) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice reasonably acceptable to the Company. If Apollo withdraws its Demand Notice pursuant Requesting Shareholders (such acceptance not to this Section 2(a) during the pendency of such delaybe unreasonably withheld, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo conditioned or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofdelayed).
Appears in 1 contract
Sources: Shareholder Support Agreement (Ampco Pittsburgh Corp)
Demand Registrations. Apollo At any time following the three year anniversary of the Closing Date, Syntone will have the right to request registration of its Registrable Securities (which may, at any time during Syntone’s request, be shelf registrations pursuant to Rule 415 promulgated under the Term Securities Act), which request or requests will specify the number of this AgreementRegistrable Securities intended to be transferred and the intended method of distribution of such Registrable Securities; provided, by written notice however, that Syntone may not request registration of Registrable Securities having an aggregate gross offering price (a “Demand Notice”not taking into account underwriters discounts and commissions) delivered of less than $50,000,000. Upon receipt of such request, Outlook will use its commercially reasonable efforts to promptly effect the Company, require the Company to register registration under the Securities Act (a “Demand Registration”) all or part of the Registrable Common Stock on behalf Securities so requested to be registered; provided, however, that Outlook will not be required to prepare and file (x) more than two registration statements nor (y) more than one registration statement within any twelve-month period, in each case, at the request of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made Syntone pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement7.7. Notwithstanding the foregoing, the Company Outlook may delay the filing or effectiveness of any registration of Registrable Securities pursuant to this Section 7.7 or suspend the use of any registration statement (and Syntone hereby agrees not to offer or sell any Registrable Securities pursuant to such registration statement) for a Demand Registration period of not more than 90 days if at the time of such request (i) Outlook is engaged, or has fixed plans to engage within 90 days following receipt of such request, in a firm commitment underwritten public offering of Registrable Securities, (ii) if Outlook reasonably believes that there is or may be in existence material nonpublic information or events involving Outlook, the failure of which to be disclosed in the prospectus included in the registration statement could result in a Violation, (iii) all reports required to be filed by Outlook pursuant to the Exchange Act have not been filed by the required date (without regard to any extension), or (iv) if the consummation of any business combination by Outlook has occurred or is probable for purposes of Rule 3-05 or Article 11 of Regulation S-X promulgated by the Permitted Delay Period SEC or any similar successor rule. If Outlook will exercise its right to delay the filing or effectiveness or suspend the use of a registration hereunder, the applicable time period during which the registration statement is to remain effective will be extended by a period of time equal to the duration of the suspension period. If so directed by Outlook, Syntone will (as defined belowi) from not offer to sell any Registrable Securities pursuant to the date registration statement during the Company first gives Apollo period in which the delay or suspension is in effect after receiving notice of such delay by written notice or suspension; and (ii) use its commercially reasonable efforts to Apollo stating the reason for and the extent of any such delaydeliver to Outlook (at Outlook’s expense) all copies, if the Board of Directors other than permanent file copies then in Outlook’s possession, of the Company determines in good faith that proceeding with prospectus relating to such Registrable Securities current at the proposed offering would have a material adverse effect on time of receipt of such notice. Outlook will use its commercially reasonable efforts to maintain the Company, or during the pendency of a transaction that the Board of Directors continuous effectiveness of the Company determines in good faith is material registration statement until all such securities cease to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a Registrable Securities or such shorter period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to upon which Apollo is otherwise entitled and, none all of the costs and expenses incurred by Apollo or the Company Registrable Securities included in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofregistration statement have actually been sold.
Appears in 1 contract
Sources: Stock Purchase Agreement (Outlook Therapeutics, Inc.)
Demand Registrations. Apollo (i) Each Stockholder Representative may, at any time during the Term of this Agreementsubject to Sections 2(a)(ii) and 2(a)(iv), by written notice (a “Demand Notice”) delivered request up to the Company, require the Company to register three registrations under the Securities Act of all or any portion of (A) its Registrable Securities and (B) any Registrable Securities of a Stockholder to whom such Stockholder Representative has properly assigned its rights under this Section 2(a) (each such registration request, a “Demand Registration”) all or part ), subject to a minimum of $50 million of Registrable Securities in any Demand Registration; provided that, in the Registrable Common Stock on behalf case of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify requested by the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2EGI-TRB Stockholders Representative, the Company shall not be required to file another Registration Statement pursuant such requested registration prior to this Section 2 until 180 days have elapsed from the date on which third anniversary of the registration statement filed with Purchase Date (the SEC pursuant to such Effected “EGI-TRB Restriction Termination Date”) and, in the case of a Demand Registration was declared effective requested by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by ApolloESOP Stockholders Representative, the Company shall not be required to file another such requested registration prior to the first anniversary of the date hereof (the “ESOP Restriction Termination Date” and, together with the EGI-TRB Restriction Termination Date, the “Restriction Termination Dates”); provided, further, that each Stockholder Representative may make such request up to 90 days prior to the applicable Restriction Termination Date for a filing on or after the applicable Restriction Termination Date. Each request for a Demand Registration Statement shall specify the number of Registrable Securities requested to be registered and the intended method of distribution thereof (it being understood that no Demand Registration shall require the Company to effect a shelf registration statement).
(ii) A registration requested pursuant to this Agreement shall be deemed to have been effected for purposes of Section 2 until 180 days have elapsed from the earlier of 2(a)(i) if (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo it has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is been declared effective by the SEC, (B) at least 80% of the Registrable Securities requested to be included in such Demand Registration (after giving effect to any reduction pursuant to Section 2(a)(iii)) shall have been registered and, in the case of an underwritten offering, sold, (C) it has not failed to remain effective for the period set forth in Section 3(c) and (D) the offering of Registrable Securities pursuant to such Demand Registration has not been subject to any stop order or injunction or other order or requirement of the SEC lasting more than 45 days and preventing the offering of Registrable Securities thereunder.
(iii) In connection with a Demand Registration pursuant to which an underwritten public offering is requested as the intended method of distribution pursuant to Section 2(a)(i), if the managing underwriters advise the Company in writing, with a copy to be delivered to the requesting Stockholder Representative, that, in their opinion, the number of Registrable Securities requested to be included in such offering exceeds the largest number of securities which can be sold therein without adversely affecting the marketability of the offering and within a price range reasonably acceptable to the requesting Stockholder Representative, the Company shall include in such registration the amount of Registrable Securities requested to be included which in the opinion of such underwriters can be sold without adversely affecting the marketability of the offering; provided, that if the number of Registrable Securities to be included in the registration is less than 75% of the number requested to be so included, the requesting Stockholder Representative shall be entitled to withdraw its request for a Demand Registration in lieu of the registration of such lesser amount of Registrable Securities and, if such request is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder.
(iv) The Company shall not be obligated to file a effect any Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is within (A) 180 days after the effective date of such a previous Demand Registration Statementor (B) 120 days after the date of a previous Piggyback Registration in which the Stockholder participates pursuant to Section 2(b). Notwithstanding the foregoing, the The Company may delay postpone or suspend, as applicable, for no more than two periods in any 12-month period aggregating not more than 120 days in such 12-month period the filing, effectiveness or use of a registration statement for a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent Stockholder agrees not to offer or sell any Registrable Securities pursuant to such Registration Statement during such deferral or suspension), pursuant to this Section 2(a)(iv) or clause (C) of any such delaySection 3(i), if the Board Company’s board of Directors of the Company directors determines in good faith that proceeding such filing or effectiveness would (A) interfere with or adversely affect in any material respect the proposed offering would have negotiation or completion of any material transaction or other Material Event that is being contemplated by the Company or (B) involve initial or continuing disclosure obligations relating to a material adverse effect on Material Event, the disclosure of which could, in the reasonable judgment of the Company, be materially adverse to its interests; provided, that in the event of such a postponement of registration, each requesting Stockholder Representative shall be entitled to withdraw its request for a Demand Registration and, if such request is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder. In the event the Company shall exercise its deferral or during suspension rights hereunder following the pendency effectiveness of a transaction registration statement filed in response to the request for a Demand Registration, the applicable time period during which the registration statement is to remain effective under Section 3(c) shall be extended by a period of time equal to the duration of such deferral or suspension. The number and length of deferral and suspension periods in any 12-month period under this Section 2(a)(iv) shall be aggregated with the number and the length of Deferral Periods under clause (C) of Section 3(i), such that the Board Company shall not be permitted to postpone or suspend, for more than two periods in any 12-month period aggregating not more than 120 days in such 12-month period the filing, effectiveness or use of Directors a registration statement for a Demand Registration pursuant to this Section 2(a)(iv) and/or clause (C) of Section 3(i) taken together.
(v) In connection with any Demand Registration, the Company determines in good faith is material requesting Stockholder Representative shall have the right to designate a nationally recognized underwriter or underwriters as the lead or managing underwriter(s) of such underwritten offering who shall be reasonably acceptable to the Company. As used hereinIn connection with any such underwritten offering, each Stockholder holding Registrable Securities to be included in such registration and the “Permitted Delay Period” Company agree that they will each enter into a customary underwriting agreement with the underwriter(s) selected pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofpreceding sentence.
Appears in 1 contract
Demand Registrations. Apollo may, at any time (a) Each Holder shall have the right (the "Demand Right") during the Term term of this Agreement, by written notice (a “Demand Notice”) delivered Agreement to the Company, require the Company to register file a registration statement under the Securities Act (a “Demand Registration”) in respect of all or part some of the Registrable Common Stock 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, including, if the Company qualifies, a shelf registration statement relating to the offer and sale of all Registrable Shares by the Holders from time to time in accordance with the methods of distribution elected by such Holders). 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 behalf form F-3 within the meaning of Apollo 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 Company shall be deemed to have effected a Demand Registration (i) if the demand registration statement is declared effective by the SEC and remains effective for not less than one hundred eighty (180) days (or such shorter period as shall terminate when all Registrable Shares covered by such demand registration statement have been sold or withdrawn), or (ii) if such registration statement relates to an underwritten offering, such longer period as, in the opinion of counsel for the underwriter or underwriters, a prospectus is required by law to be delivered in connection with sales of Registrable Shares by an underwriter or dealer (the applicable period, the “Demand Period”) or (iii) if in connection with a shelf registration statement, the shelf registration statement is continuously effective under the Securities Act in order to permit the prospectus forming a part thereof to be usable by Holders until the date as of which all Registrable Shares have been sold pursuant to the shelf registration statement or another registration statement filed under the Securities Act or the date as of which the Holders are permitted to sell their Registrable Shares without registration under the Securities Act pursuant to Rule 144 under the Securities Act without volume limitation or other restrictions on transfer thereunder. No Demand Registration shall be deemed to have been effected if (i) during the Demand Period such registration is interfered with by any stop order, injunction or other order or requirement of its Affiliates the SEC or other governmental agency or court or (ii) the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied other than by reason of a wrongful act, misrepresentation or breach of such applicable underwriting agreement by the Holder.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled, upon giving prompt written notice of such action to the Holders, to postpone and delay the filing of any Demand Registration for a period not exceeding 45 days if (i) the Company is conducting or about to conduct an underwritten public offering of securities in which hold Registrable Common Stock. Requests from Apollo the Holder is entitled to include shares join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a Piggyback 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 for purposes of Registration.
(c) Notwithstanding anything contained in this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing3.01:
(i) the Company shall not be required to effect more than two 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 Registrations during Registration by a Holder or within 180 days of the term effective date of this Agreementa prior registration statement registering Ordinary Shares;
(ii) if the Company has previously effected an Effected a Holder shall not be entitled to request a Demand Registration pursuant to this Section 2until 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 another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the a registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected filing of such a registration statement, or the transactions contemplated by a “shelf” registration as requested by Apollosuch 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 another Registration Statement pursuant to this Section 2 until 180 days have elapsed from a registration statement if the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal filing of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expiresregistration statement, or the date that is 180 days after transactions contemplated by such fling, would in the effective date good faith judgment of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines 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 that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency judgment of a transaction that the Board of Directors of the Company determines result in good faith is material to a breach of the Company. As used herein's financing or other debt documents (including, the “Permitted Delay Period” pursuant to any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 2(a3.01, 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 Shares 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 period greater number of days 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 up the relative number of securities originally requested to 90 daysbe registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, in no event shall that if the Company delay any Demand Registration for a longer period than the Board lead underwriter of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay an offering involving a Demand Registration more than once. If advises the Holders that have requested such registration that the number of Ordinary Shares that the Company delays intends to include in addition to the Demand Registrationtotal 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, Apollo then the Holders will promptly, so advise the Company and may withdraw its Demand Notice during the pendency of such delay require, by written notice to the Company. If Apollo withdraws its Demand Notice pursuant Company accompanying such advice, that, to this Section 2(a) during the pendency of extent necessary to meet such delaylimitation, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration newly issued Ordinary Shares shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofexcluded from such Demand Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Partner Communications Co LTD)
Demand Registrations. Apollo mayIf, at any time during the Term after one year after a Qualified Initial Public Offering, and subject to Section 10.5, (i) a Limited Partner or any Affiliate of this Agreement, by written notice such Limited Partner (a “Demand Notice”) delivered to the Company, require the Company to register under the Securities Act (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration including for purposes of this Section 2. All requests for Demand Registrations made pursuant 10.1, any Person that is an Affiliate of a Limited Partner at the date hereof notwithstanding that it may later cease to this Section 2 shall specify be an Affiliate of such Limited Partner) holds Limited Partnership Interests that it desires to sell and (ii) Rule 144 of the Securities Act (or any successor rule or regulation to Rule 144) or another exemption from registration is not available to enable such holder of Limited Partnership Interests (each, a “Holder”) to dispose of the number of shares Limited Partnership Interests it desires to sell without registration under the Securities Act, then at the option and upon the request of Registrable Common Stock the Holder, the Partnership shall file with the Commission as promptly as practicable after receiving such request, and use all commercially reasonable efforts to cause to become effective and remain effective for a period of not less than 180 days following its effective date or such shorter period as shall terminate when all Limited Partnership Interests covered by such registration statement have been sold, a registration statement under the Securities Act registering the offering and sale of the number of Limited Partnership Interests specified by the Holder (including Limited Partnership Interests eligible to be registered and sold pursuant to Rule 144); provided, however, that the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company Partnership shall not be required to effect more than two Demand Registrations during registrations pursuant to Section 10.1 and Section 10.2 at the term request of this Agreement;
(ii) Adena or more than one registration pursuant to Section 10.1 and Section 10.2 at the request of each of Western Pocahontas and Great Northern; provided further, however, that if the Company General Partner determines that the requested registration would be materially detrimental to the Partnership and its Partners because such registration would (x) materially interfere with a significant acquisition, reorganization or other similar transaction involving the Partnership, (y) require premature disclosure of material information that the Partnership has previously effected an Effected Demand Registration a bona fide business purpose for preserving as confidential or (z) render the Partnership unable to comply with requirements under applicable securities laws, then the Partnership shall have the right to postpone such requested registration for a period of not more than three months after receipt of the Holder’s request, such right pursuant to this Section 210.1 and Section 10.2 not to be utilized more than twice in any twelve-month period. At the Partnership’s election, the Company shall not be required to file another Registration Statement pursuant to Partnership may satisfy its obligations under this Section 2 until 180 days have elapsed from the date on which the registration statement filed 10.1 with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration statement on an appropriate form under Rule 415 under the Securities Act or any similar rule that may be adopted by the Commission. Except as requested by Apolloprovided in the first sentence of this Section 10.1, the Company Partnership shall be deemed not be to have used all commercially reasonable efforts to keep the registration statement effective during the applicable period if it voluntarily takes any action that would result in Holders of Limited Partnership Interests covered thereby not being able to offer and sell such Limited Partnership Interests at any time during such period, unless such action is required to file another Registration Statement by applicable law. In connection with any registration pursuant to the first sentence of this Section 2 until 180 days have elapsed from 10.1, the earlier of Partnership shall (i) promptly prepare and file (A) such documents as may be necessary to register or qualify the date of the completion of the sale of all Registrable Common Stock registered pursuant securities subject to such Effected Demand Registration and (B) registration under the date of expiration or withdrawal securities laws of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration states as the Holder shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 daysreasonably request; provided, however, that no such qualification shall be required in no event shall any jurisdiction where, as a result thereof, the Company delay any Demand Registration for Partnership would become subject to general service of process or to taxation or qualification to do business as a longer period than the Board of Directors determines foreign corporation or partnership doing business in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay such jurisdiction solely as a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency result of such delay registration, and (B) such documents as may be necessary to apply for listing or to list the Limited Partnership Interests subject to such registration on such national securities exchange or national quotation system on which the Limited Partnership Interests are listed or quoted for trading as such Holder shall reasonably request, and (ii) do any and all other acts and things that may be necessary or appropriate to enable the Holder to consummate a public sale of such Limited Partnership Interests in such states. Except as set forth in Section 10.4, all expenses incurred in connection with one and only one registration and offering demanded by written notice to the Company. If Apollo withdraws its Demand Notice Adena pursuant to this Section 2(a) during 10.1 or Section 10.2 (other than the pendency underwriters’ and brokers’ discounts and commissions and fees and disbursements of such delaycounsel for the Holders), the Demand Registration shall not constitute a Demand Registration under this Agreement including without limitation all federal and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and“blue sky” registration, none of the costs filing and qualification fees, printer’s and accounting fees, reasonable fees and expenses of counsel to the Partnership (selected by the General Partner) and reasonable road show expenses (including aircraft charter fees (if any) and other travel expenses), shall be paid by the Partnership, without reimbursement by the Holders, it being understood and agreed that thereafter all expenses incurred by Apollo or the Company in connection with any other registration and offering demanded pursuant to this Section 10.1 or Section 10.2, including without limitation underwriters’ and brokers’ discounts and commissions relating to Limited Partnership Interests included in such withdrawn Demand Registration registration by each Holder participating in such offering, all federal and “blue sky” registration, filing and qualification fees, printer’s and accounting fees, fees and expenses of counsel for such Holders, reasonable fees and expenses of one counsel to the Partnership (selected by the General Partner), and reasonable road show expenses (including aircraft charter fees (if any) and other travel expenses), shall be considered Expenses for borne by the purpose of calculating Excess Expenses participating Holders. Each Holder participating in the registration and offering pursuant to this Section 10.1 and each Holder participating in such registration and offering pursuant to Section 7 hereof10.3 shall bear such Holder’s proportionate share (based on the total amount of Limited Partnership Interests included in such registration) of all expenses payable by the participating Holders.
Appears in 1 contract
Sources: Limited Partnership Agreement (Natural Resource Partners Lp)
Demand Registrations. Apollo may, at any time during the Term of this Agreement, by written notice (a “Demand Notice”a) delivered to the Company, require If (i) the Company to register under the Securities Act shall receive a written request (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations specifying that it is being made pursuant to this Section 2 shall specify 7) from one or more Holders that the number Company file a registration statement on Form S-3 (or any successor form to Form S-3 regardless of shares its designation) (or, if the Company is not then a registrant entitled at such time to use Form S-3 (or any form to Form S-3 regardless of its designation) to register such shares, a Form S-1 (or any successor form to Form S-1 regardless of designation) for a public offering of Registrable Common Stock Shares (whether by underwriting or otherwise) the reasonable anticipated aggregate price to the public of which would equal or exceed $3,000,000 (a “Demand Registration Request”), then the Company shall promptly notify all other Holders of such request and shall use its reasonable best efforts to cause all Registrable Shares that Holders, within fifteen (15) days after receipt of any such written notice, have requested be registered to be registered and the intended methods of disposition thereof. as soon as reasonably practicable thereafter.
(b) Notwithstanding anything to the contrary in the foregoing:
, (i) the Company shall not be required obligated to effect more than two Demand Registrations a registration pursuant to Section 7(a) during the term period starting with the date ninety (90) days prior to the Company’s estimated date of this Agreement;
filing of, and ending on a date ninety (ii90) if days following the effective date of, a registration statement pertaining to an underwritten public offering of securities for the account of the Company, provided, that the Company has previously effected is actively employing in good faith its commercially reasonable efforts to cause such registration statement to become effective and that the Company’s estimate of the date of filing such registration statement is made in good faith; provided, however, that the Company shall file a registration statement upon the request of one or more Holders pursuant to Section 7(a) after ninety (90) days have elapsed after the estimated date of filing of such registration statement pertaining to an Effected Demand Registration underwritten public offering of securities for the account of the Company; and provided, further, that the Company shall only be permitted to delay pursuant to this Section 2, 7(b)(i) the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the filing of a registration statement requested to be filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration one or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights more Holders pursuant to Section 3 hereof, and 7(a) once in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggyany 12-Back Registration when such Registration Statement is declared effective by the SEC, month period; (ii) the Company shall not be obligated to effect (x) more than three registrations pursuant to Section 7(a) on Form S-1 (or any successor form) and (y) more than two registrations pursuant to Section 7(a) in any twelve month period, and (iii) if the Company shall furnish to the Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed (a “Valid Business Reason”) in the near future, then the Company’s obligation to use its reasonable best efforts to file a Demand Registration Statement before registration statement shall be deferred until such Valid Business Reason no longer exists; provided that Company may exercise its right to delay filing a registration statement pursuant to this Section 7(b)(iii) or to suspend the earlier use of a prospectus included in an effective registration statement pursuant to Section 13(f) for an aggregate period not to exceed ninety (90) days in any 12-month period. The Company shall give notice of its determination to delay or suspend a registration statement and of the date on which fact that the lock-up agreementValid Business Reason for such delay or suspension no longer exists, if anyin each case, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days promptly after the effective date of such occurrence thereof.
(c) If any registration statement pursuant to this Section 7 or any Subsequent Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from ceases to be effective for any reason at any time during the date Effectiveness Period, the Company first gives Apollo notice shall use reasonable best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within forty-five (45) days of such delay by written notice cessation of effectiveness amend such registration statement in a manner to Apollo stating obtain the reason for and the extent of any such delay, if the Board of Directors withdrawal of the order suspending the effectiveness thereof, or file an additional registration statement, covering all of the Registrable Shares covered by such prior registration statement (a “Subsequent Registration”). If a Subsequent Registration is filed, the Company determines in good faith that proceeding with shall use reasonable best efforts to cause the proposed offering would have Subsequent Registration to be declared effective under the Securities Act as soon as practicable after such filing and to keep such Subsequent Registration continuously effective for the remainder of the Effectiveness Period plus the number of days during which the registration statement replaced by the Subsequent Registration ceased to be effective. Notwithstanding anything to the contrary contained herein the filing by the Company of a material adverse effect Subsequent Registration shall not be counted for purposes of limitations on the Company, or during the pendency number of a transaction that the Board of Directors of registration statements the Company determines in good faith is material required to the Company. As used herein, the “Permitted Delay Period” effect pursuant to this Section 2(a7.
(d) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays files any shelf registration statement for the Demand Registrationbenefit of the holders of any of its securities other than the Holders, Apollo the Company agrees that it shall include in such registration statement such disclosures as may withdraw its Demand Notice during the pendency of such delay be required by written notice Rule 430B (referring to the Company. If Apollo withdraws its Demand Notice pursuant unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders) in order to ensure that the Holders may be added to such shelf registration statement, if the Company so elects, at a later time through the filing of a prospectus supplement rather than a post-effective amendment.
(e) The Holders’ rights to registration under this Section 2(a) during the pendency 7 are in addition to, and not in lieu of, their rights to registration under Section 2 of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofAgreement.
Appears in 1 contract
Sources: Investor Rights Agreement (Momenta Pharmaceuticals Inc)
Demand Registrations. Apollo may, at any time during the Term of this Agreement, by written notice (a “Demand Notice”a) delivered to the Company, require The Investor may request the Company to register under the Securities Act use all commercially reasonable efforts to effect a Registration of all or part of its Common Shares (such Registration being hereinafter referred to as a “Demand Registration”). Any such request shall be made by notice in writing (a “Request”) all or part of to the Registrable Common Stock on behalf of Apollo Company and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock Shares to be registered and sold by the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:Investor.
(ib) The Investor may only effect three Demand Registrations in total and two in any twelve month period. For the Company purposes of this Section, a Demand Registration shall not be required considered as having been effected until a receipt has been issued by one or more of the Canadian Securities Commissions for the (final) prospectus filed in connection with such Demand Registration, or the SEC has declared effective the registration statement filed in connection with such Demand Registration (or such registration statement has become effective as a matter of law), as applicable.
(c) The Corporation shall not be obliged to effect more than two a Demand Registrations during Registration in the term event the Board determines in its good faith judgment that either (A) the effect of this Agreement;
the filing of a prospectus or registration statement would materially impede the ability of the Company to consummate a material financing, acquisition, corporate reorganization, merger or other material transaction involving the Company; or (iiB) if there exists at the time material non-public information relating to the Company the disclosure of which the Company believes would be detrimental to the Company and the Company has previously effected an Effected bona fide business purposes for preserving such information as confidential (in either such case, a “Valid Business Reason”). In either case the Company’s obligations under this Section 2.1 will be deferred for a reasonable period of time (not to exceed 90 days) from the date of receipt of the Request, provided that the Company may not defer its obligations under this Section 2.1 more than twice in any twelve month period. The Company will give written notice of its determination to postpone filing and of the fact that the Valid Business Reason for such postponement no longer exists, in each case, promptly after the occurrence thereof. If the Company postpones the filing of a prospectus or registration statement pursuant to this Section 2.1(c) and if the Investor, at any time prior to receiving written notice that the Valid Business Reason for such postponement no longer exists, advises the Company in writing that it has determined to withdraw such Request for a Demand Registration, then such Demand Registration and the Request therefor will be deemed to be withdrawn and such Request will be deemed not to have been given for purposes of determining whether the Investor has exercised its right to a Demand Registration pursuant to this Section 2, the Company 2.1.
(d) The Corporation shall not be required obliged to file another effect a Demand Registration Statement unless necessary to permit an offering of freely tradeable securities of the Company under the U.S. Securities Act.
(e) The lead underwriter or underwriters for any offering in connection with a Demand Registration shall be mutually agreed to by the Investor and the Company, each acting reasonably.
(f) The Company and the Investor each agree, in connection with any Demand Registration involving an underwritten offering, that they each will not, (a) without the prior written consent of the lead underwriter, for a reasonable period requested by any underwriter involved in such underwritten offering following the closing of a sale of Registrable Securities in accordance with a Demand Registration, not to exceed 90 days, issue or sell or agree to issue or sell Common Shares or securities convertible into or exercisable or exchangeable for Common Shares (other than pursuant to this Section 2 until 180 days (i) contractual commitments that have elapsed from been publicly disclosed by the Company prior to the date on which the Company received the Request in connection with such Demand Registration, (ii) equity compensation plans or (iii) the terms of convertible or exchangeable securities outstanding at the date of such Demand Registration; and other exceptions as may be agreed upon between the Company and the lead underwriter, each acting reasonably) or (b) file or announce the intention to file a prospectus or registration statement to qualify or register any Common Shares for distribution under Securities Laws until the date the preliminary prospectus or registration statement is filed for the underwritten offering in connection with the Demand Registration or until it is determined under Section 2.1(c) that no Demand Registration will be effected.
(g) The Company shall be entitled to include for sale in any prospectus or registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors securities of the Company determines to be sold by the Company for its own account unless the underwriters advise the Company that the aggregate amount of securities requested to be included in good faith that proceeding with the proposed such offering would is sufficiently large to have a material adverse effect on the Company, distribution or during the pendency of a transaction that the Board of Directors sales price of the Company determines Registrable Securities in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, such offering in no event shall which case the Company delay any Demand Registration for a longer period than the Board of Directors determines will include in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the such Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none extent of the costs amount that the underwriter believes may be sold without causing such material adverse effect, first the Registrable Securities requested to be included by the Investor and expenses incurred second, securities offered by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofits own account.
Appears in 1 contract
Sources: Investor Rights Agreement (Hebei Iron & Steel Group Co., Ltd.)
Demand Registrations. Apollo may(i) Subject to Sections 2.1(b), 2.1(e) and 2.3 below, (x) at any time during and from time to time, in the Term case of this Agreementany Cohen Party, by written notice (y) at any time and from time to time after the earli▇▇ ▇▇ (A) six (6) months following the closing of an IPO and (B) the first anniversary of the date hereof in the case of any GSCP Party or (z) at any time and from time to time after six (6) months following the closing of an IPO in the case of any other Holder, such Holder or a “Demand Notice”) delivered group of Holders shall have the right to the Company, require the Company to register file a registration statement under the Securities Act (a “Demand Registration”) covering all or any permitted part of their respective Registrable Securities, by delivering a written request therefor to the Company specifying the number of Registrable Common Stock on behalf Securities to be included in such registration by such Holder or group of Apollo Holders and any the intended method of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2distribution thereof. All requests for Demand Registrations made pursuant to this Section 2 2.1(a)(i) are referred to herein as "Demand Registration Requests," and the registrations requested are referred to herein as "Demand Registrations." As promptly as practicable, but no later than ten days after receipt of a Demand Registration Request, the Company shall give written notice of such Demand Registration Request to all Holders of record of Registrable Securities.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Holder(s) which requested such registration and (y) the Registrable Securities of any Holder which shall have made a written request to the Company for registration thereof in accordance with the provisions of Section 2.2. (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Holder) within 30 days after the receipt of written notice (or, 15 days if, at the request of the Holder(s) which requested such registration, the Company states in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on Form S-3 )
(iii) The Company shall, as expeditiously as possible following a Demand Registration Request, use its best efforts to (x) effect such registration under the Securities Act of the Registrable Securities which the Company has been so requested to register, for distribution in accordance with such intended method of distribution, and (y) if requested by the Holder(s) which requested such registration, obtain acceleration of the effective date of the registration statement relating to such registration.
(b) The Demand Registration rights granted to the Holders in Section 2.1(a) are subject to the limitations set forth in Section 4.6(a) and to the following limitations: (i) each Demand Registration Request must include Registrable Securities either (A) having an aggregate market value of at least $15,000,000, which market value shall be determined by multiplying the number of Registrable Securities to be included in the Demand Registration by the proposed per share offering price thereof or (B) the case of an IPO, in an amount equal to fifty percent of the number of shares of Registrable Common Stock which may be acquired upon the conversion of all of the shares of Preferred Stock presently held by the GSCP Parties (the "Preferred Stock Conversion Shares") (provided that the limitations set forth in this clause (i) shall not be in effect at any time the Holders' Registrable Securities would otherwise be able to be registered and sold under Rule 144 under the intended methods of disposition thereof. Notwithstanding anything Securities Act but for the Company's failure to comply with the information requirements thereunder, unless at such time, the Company's outside counsel (which shall be reasonably acceptable to the contrary in Holders requesting such registration) delivers a written opinion of counsel to such Holders to the foregoing:
effect that such Holders' Registrable Securities may be publicly offered and sold without registration under the Securities Act); (iii) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the cause a registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related 2.1(a)(i) to such Piggy-Back Registration when such Registration Statement is be declared effective by the SEC, the Company shall not be obligated to file within a Demand Registration Statement before the earlier period of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, any other registration statement of the Company may delay (other than a Demand Registration for the Permitted Delay Period registration statement on Form S-8); (as defined belowiii) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines Company, in its good faith judgment, determines that proceeding any registration of Registrable Securities should not be made or continued because it would materially interfere with or materially adversely affect, any material financing, acquisition, disposition of assets or stock, corporate reorganization or merger or other transaction involving the proposed offering Company or any of its subsidiaries or would require the Company to make public disclosure of information the public disclosure of which would not otherwise then be required and which would have a material adverse effect on upon the Company or the value of the Company's Stock (a "Valid Business Reason"), the Company may postpone filing a registration statement relating to a Demand Registration Request until such Valid Business Reason no longer exists, but in no event for more than six months, and, in case a registration statement has been filed relating to a Demand Registration Request, if the Valid Business Reason has not resulted from actions taken by the Company, the Company may cause such registration statement to be withdrawn and its effectiveness terminated or during may postpone amending or supplementing such registration statement; and the pendency Company shall give written notice of its determination to postpone or withdraw a transaction registration statement and of the fact that the Board Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof; and (iv) the offering of Directors of the Company determines in good faith is material Registrable Securities requested to the Company. As used herein, the “Permitted Delay Period” be registered pursuant to this Section 2(a2.1(a)(i) shall be pursuant to a firm commitment underwritten offering unless the Company has previously sold Registrable Securities pursuant to a registration statement under the Securities Act. If the Company shall give any notice of postponement or withdrawal of any registration statement, the Company shall not, during the period of days postponement or withdrawal, register any Common Stock, other than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in effect) or a registration on any registration form that does not permit secondary sales. Each Holder of up Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to 90 dayswithdraw any registration statement pursuant to clause (iii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement and, if so directed by the Company, will deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in such Holder's possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice. If the Company shall have withdrawn or prematurely terminated a registration statement filed under Section 2.1(a)(i) (whether pursuant to clause (iii) above or as a result of any stop order, injunction or other order or requirement of the Commission or any other governmental agency or court), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement, the Company shall, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event later than six months after the date of the postponement), use its best efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the Holder(s) delivering the Demand Registration Request shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of this Agreement), and such registration shall not be withdrawn or postponed pursuant to clause (iii) above.
(c) The Company, subject to Sections 2.3 and 2.6, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), authorized but unissued shares of Common Stock or shares of Common Stock held by the Company as treasury shares; provided, however, that such -------- ------- inclusion shall be permitted only to the extent that it is pursuant to and subject to the terms of the underwriting agreement or arrangements, if any, entered into by the Holders exercising the Demand Registration rights granted to the Holders under Section 2.1(a)(i).
(d) Subject to any provisions in no event shall the Company delay Purchase Agreement or the Stockholder Agreement, the managing underwriter for any Demand Registration shall be selected by the party or parties making the demand for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; such registration, provided further that in no event such underwriter shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice be reasonably satisfactory to the Company. If Apollo withdraws its .
(e) Notwithstanding any other provision of this Agreement, no Person other than a Cohen Party or a GSCP Party shall be entitled to make a Demand Notice Reg▇▇▇▇▇tion Request pursuant to this Section 2(a2 until six (6) during months following the pendency closing of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofan IPO.
Appears in 1 contract
Sources: Registration Rights Agreement (Pny Technologies Inc)
Demand Registrations. Apollo maySubject to the immediately following sentence, at any time during the Term upon its receipt of this Agreement, by a written notice from ZixIt, Lante shall promptly prepare and file with the Securities and Exchange Commission (the "SEC") a “Demand Notice”) delivered to registration statement on the Company, require the Company to register applicable form under the Securities Act of 1933, as amended (a “Demand Registration”the "Securities Act") all or part covering the Shares that are the subject of the Registrable Common Stock on behalf of Apollo and request. The notice from ZixIt may be delivered at any of its Affiliates which hold Registrable Common Stock. Requests from Apollo time after the following conditions are met (or within a reasonable period prior to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock date when the conditions are anticipated to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
met): (i) the Company Transfer restrictions pertaining to the Shares (as set forth in Subsection 8(b) of the Option) have lapsed and (ii) Lante is permitted to use a Form other than Form S-1 to register the sale of the Shares. Lante shall use its commercially reasonable efforts to cause such registration statement to become effective as promptly as practicable following the later to occur of (a) both conditions set forth above are met and (b) the receipt of the written notice. Lante shall also file such post-effective amendments to such registration statement in order for it to remain effective without lapse until the earlier of (i) 90 days following the date the registration statement is declared effective or (ii) all the Shares so registered have been sold, subject to the three immediately following sentences. Upon request of ZixIt and subject to the consent of Lante (which consent is not to be unreasonably withheld), the effectiveness of the registration statement will be extended for up to an additional 30 days. If, during the effectiveness of the registration statement, ZixIt determines that it no longer desires to sell any (or further) Shares at that time, ZixIt will so advise Lante so that Lante can withdraw the registration statement. The running of the periods of time shall be extended to account for any stop order suspending the effectiveness of a registration statement is in effect. ZixIt shall be entitled to make three registration requests under this paragraph 2.A. Lante will not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration a registration pursuant to this Section 2, the Company paragraph 2.A. more frequently than once during any period of 12 consecutive months. The parties acknowledge and agree that any registration effected under this paragraph 2.A. shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from an underwritten offering. Lante may defer the date on which filing (but not the preparation) of the registration statement filed with under this paragraph 2.A. for a period of up to 90 days if (a) at the SEC pursuant to time Lante or any of its subsidiaries is engaged in material confidential negotiations or other material confidential business activities, disclosure of which would be required in such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall statement (but would not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to if such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereofregistration statement were not filed), and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines Lante determines, reasonably and in good faith that proceeding with the proposed offering such disclosure would be materially detrimental to Lante and its shareholders or would have a material adverse effect on any such confidential negotiations or other confidential business activities; or (b) at the Companytime Lante is engaged in business activities pertaining to an underwritten public offering of Lante's securities and the underwriters have advised Lante in writing that the filing of the registration statement would have a material adverse effect on its ability to consummate such offering; or (c) pursuant to an underwriting agreement in connection with an underwritten offering, Lante has agreed not to file any registration statement pursuant to which the Shares may be registered. A deferral of the filing of the registration statement will be lifted, and the registration statement shall be filed as soon as practicable thereafter forthwith, if the negotiations or during other activities are completed, disclosed or terminated or the pendency underwritten public offering is completed, terminated or postponed. In order to defer the filing of a transaction that the Board registration statement, Lante will deliver to ZixIt a certificate signed by a senior executive officer of Directors Lante setting forth a statement of the Company determines in good faith is material to reason for such deferral and an approximation of the Companyanticipated delay, which information ZixIt shall treat as confidential. As used hereinMoreover, Lante may not defer the “Permitted Delay Period” filing or effectiveness of a registration statement pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration paragraph more than onceonce in any 12 month period. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency Lante represents and warrants that any shareholder of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofLante who has piggyback registration rights also has demand registration rights.
Appears in 1 contract
Sources: Stock Option Agreement (Zixit Corp)
Demand Registrations. Apollo may(i) Within ten (10) days after receipt of a request for a Demand Registration, at any time during the Term of this Agreement, by Company shall give written notice (the "Notice") of such request to all the Holders (other than the Initiating Holder(s)). Each of the Holders other than the Initiating Holder(s) shall, subject to the other provisions of this Section 2.3, upon receipt of written request therefor within ten (10) days after the Notice is given (the "Election Period"), have the right to include in such Demand Registration the number of Registrable Securities registrable by such Holder pursuant to Section 2.2.1 of this Agreement as of the time such Notice is made (the "Demand Piggyback Shares").
(ii) Registration of the Demand Piggyback Shares requested to be registered by any Holder shall be subject to the following conditions: (A) in respect of a “registration relating to any Underwritten Public Offering, (x) compliance with the "cutback" provisions contained in Section 2.3.2, (y) acceptance by such Holder of the timing and terms and conditions of the subject Underwritten Public Offering (as evidenced by each such Holder and, if applicable, any other participating member of the Istithmar Group, becoming a party to the applicable underwriting agreement) and (z) the Underwriter being of the opinion that the sale of Shares by such Holder and, if applicable, any other participating member of the Istithmar Group, would not have a material and adverse effect on the market for the Shares and, if applicable, any other securities issued by the Company.
(iii) In the event that the Initiating Holder(s) requests the Company to withdraw a Demand Notice”Registration, Holders who shall have elected to register Demand Piggyback Shares as of the date of such withdrawal shall have the right, upon one (1) delivered business day's prior written notice to the Company, require to pursue such registration; provided, however, that the requirements of Section 2.2.1 shall otherwise be satisfied.
(iv) Subject to the foregoing and Section 2.3.2, (A) the Company to register under shall include in such registration all Registrable Securities that the Securities Act Company has received written requests for inclusion therein within the Election Period and (B) thereafter, in the case of a “Demand Registration”) all or part of , the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo Company may elect to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2such registration additional Shares issued by the Company. All requests for Demand Registrations made pursuant to this Section 2 2.3.1 shall specify the aggregate number of shares of Registrable Common Stock Securities to be registered registered. For the avoidance of doubt, no Person other than a Holder or the Company shall have the right to include Shares in any Demand Registration pursuant to Section 2.2.1 of this Agreement, and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent include Shares of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have Person other than a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo Holder or the Company in connection with any such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofRegistration.
Appears in 1 contract
Demand Registrations. Apollo may(a) Subject to the terms and conditions hereof, at solely during any time during period that the Term Company is then ineligible under Applicable Law to register Registrable Securities on a registration statement on Form S-3 or any successor form thereto (“Form S-3”), or if the Company is so eligible but has failed to comply with its obligations under Section 6.3, any Demand Shareholder(s) (whether singular or plural, referred to herein as “Requesting Shareholders”) shall be entitled to make no more than four (4) written requests of this Agreementthe Company (each, by written notice (a “Demand NoticeDemand”) delivered to the Company, require the Company to register for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders that equals or is greater than the Registrable Amount (a “Demand Registration,” and such registration statement, a “Demand Registration Statement”), the first two (2) all or part of which will be at the Company’s sole expense and the second two (2) of which the Requesting Shareholders will pay the reasonable out-of-pocket expenses of the Registrable Common Stock on behalf Company in connection therewith. Thereupon, the Company shall, subject to the terms of Apollo and any this Agreement, file the registration statement no later than thirty (30) days after receipt of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant and shall use its commercially reasonable efforts to this Section 2 shall specify effect the number of shares of Registrable Common Stock to be registered and registration as promptly as practicable under the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoingSecurities Act of:
(i) the Registrable Securities which the Company shall not be required has been so requested to effect more than two Demand Registrations during register by the term Requesting Shareholders for disposition in accordance with the intended method of this Agreementdisposition stated in such Demand;
(ii) if all other Registrable Securities which the Company has previously effected an Effected Demand Registration been requested to register pursuant to Section 6.1(b), but subject to Section 6.1(g); and
(iii) all shares of Common Stock which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 26.1, 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 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, 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 five (5) days after the 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 required deemed to file another Registration Statement pursuant 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 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected 6.1(b).
(c) A Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required deemed to file another have been made and shall not count for purposes of the limitation on Demands in Section 6.1(a) (i) unless the Demand Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier with respect thereto has become effective and has remained effective for a period of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares 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 Common Stock; andSecurities refrain from selling any securities included in such registration statement at the request of the Company or the lead managing underwriter(s) pursuant to the provisions of this Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to one hundred 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.
(ivd) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares Demand Registrations shall be on such appropriate registration form of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective Commission as shall be selected by the SEC, Company and reasonably acceptable to the Requesting Shareholders.
(e) The Company shall not be obligated to file (i) subject to Section 6.1(c), maintain the effectiveness of a Demand Registration Statement before registration statement under the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect Securities Act filed pursuant to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for a period longer than one hundred five (105) days or (ii) effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Demand Shareholders were offered “piggyback” rights pursuant to Section 6.2 (subject to Section 6.2(b)) and at least fifty percent (50%) of the Permitted Delay Period number of Registrable Securities requested by such Demand Shareholders to be included in such Demand Registration were included, (as defined belowB) from within ninety (90) days of the date 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 completion of any other Underwritten Offering by the Company first gives Apollo notice or any shorter period during which the Company has agreed not to effect a registration or public offering of securities (in each case only to the extent that the Company has undertaken contractually to the underwriters of such delay by written notice Underwritten Offering not to Apollo stating effect any registration or public offering of securities), or (D) if, in the reason Company’s reasonable judgment, it is not feasible for and the extent Company to proceed with the Demand Registration because of any such delay, if the Board unavailability of Directors audited or other required financial statements of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Companyor any other Person; provided, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material shall (I) use its commercially reasonable efforts to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(aobtain such financial statements as promptly as practicable and (II) shall be a period liable for and promptly indemnify Amazon for all Losses incurred by Amazon or its Affiliates that arise out of days of up or relate to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency unavailability of such delay by financial statements.
(f) The Company shall be entitled to (i) postpone (upon written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(aShareholders) during the pendency filing or the effectiveness of such delaya registration statement for any Demand Registration, the (ii) cause any Demand Registration shall not constitute Statement to be withdrawn and its effectiveness terminated, and (iii) suspend the use of the prospectus forming part of any registration statement, in each case during a period outside of a Trading Window until the commencement of a Trading Window.
(g) If, in connection with a Demand Registration under this Agreement and shall not reduce that involves an Underwritten Offering, the number lead managing underwriter(s) advise(s) the Company that, in its (their) good faith opinion, the inclusion of Demand Registrations to which Apollo is otherwise entitled and, none all of the costs and expenses incurred by Apollo or the Company securities sought to be registered in connection with such withdrawn Demand Registration would adversely affect the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Demand Shareholders, which, in the opinion of the lead managing underwriter(s), can be sold without adversely affecting the success thereof, pro rata among such Demand Shareholders on the basis of the number of such Registrable Securities requested to be included by such Demand Shareholders; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or 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 considered Expenses for reasonably acceptable to the purpose of calculating Excess Expenses pursuant Company (such acceptance not to Section 7 hereofbe unreasonably withheld, conditioned, or delayed).
Appears in 1 contract
Demand Registrations. Apollo may(a) Unless the shelf registration contemplated by Section 1.2 or the piggy-back registration contemplated by Section 1.4 has been filed and declared effective by the SEC, covers all then outstanding Registrable Securities and is then currently in effect, then the Company shall, at the request of the Holders of at least 250,000 shares of Registrable Securities, -3- US Dataworks, Inc. Registration Agreement October 2, 2003 prepare and use its commercially reasonable efforts to file with the SEC as promptly as practicable, but in any event within 45 days of such request, a registration statement on Form S-3 covering the resale of the Registered Securities requested to be covered by such demand. The Company shall use its commercially reasonable efforts to cause such registration statement to be filed not later than 45 days following the receipt of the notice of demand for registration under this Section 1.3, and shall use its commercially reasonable efforts to cause such registration statement to be declared effective under the Act (including filing with the SEC a request for acceleration of effectiveness in accordance with Rule 12dl-2 promulgated under the ▇▇▇▇ ▇▇▇) as promptly as practicable after the filing thereof, but in any event prior to the Effectiveness Due Date, and to keep such registration statement continuously effective under the Act until the date on which all Registrable Securities covered by such registration statement have been sold or cease to be Registrable Securities, or such earlier time during that the Term of this AgreementHolders may sell all their Registrable Securities within a single 90-day period under Rule 144 (such period, by the "EFFECTIVENESS PERIOD"); provided that the Company shall provide the Holders with written notice of its intent to terminate the effectiveness of such registration statement not fewer than three (a “Demand Notice”3) delivered business days prior to such termination. Notwithstanding the foregoing, if at the time the Holders deliver to the Company, require the Company to register under the a notice requesting registration of Registrable Securities Act (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i1.3(a) the Company shall not be required Holders are able to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration sell pursuant to this Section 2Rule 144, within the 90-day period commencing on the date that the demand notice is received by the Company, all of the Registrable Securities that are then not covered by an effective registration statement, then the Company shall not be required to file another Registration Statement a registration statement pursuant to this Section 2 until 180 days 1.3 in response to such demand, and such request shall not be deemed a demand registration for purposes of Section 1.3(f) of this Agreement.
(b) Notwithstanding the foregoing, if the Company shall furnish to Holders participating in the registration pursuant to this Section 1.3 a certificate signed by the President of the Company stating that a Blackout Period is in effect, the Company shall have elapsed from the date on which right to defer such filing or sales under the registration statement filed with the SEC pursuant to this Section 1.3 during the term of such Effected Demand Registration was Blackout Period; PROVIDED, HOWEVER, that the Company may utilize such deferral (including any such deferral that may be declared effective by pursuant to Section 1.2(b)) not more than once in any 12-month period.
(c) If, at any time during the SEC; providedEffectiveness Period, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by ApolloCompany is not eligible to register its securities on Form S-3, the Company shall not prepare and file a registration statement on Form S-1 or S-2 (or other available form for the general registration of securities) as may be required necessary to file another Registration Statement register all Registrable Securities in accordance with the terms and conditions set forth in this Section 1.3.
(d) The Company may propose to include Additional Securities in any registration statement to be filed pursuant to this Section 2 until 180 days 1.3. The Holders shall have elapsed from the earlier right to reduce the number of Additional Securities requested to be registered by the Company pursuant to this Section 1.3(d) (Aincluding, if necessary, to zero) if, in the date good faith opinion of the completion underwriter or underwriters of such offering, the inclusion of such Additional Securities would materially and adversely affect the marketability or price of the sale of all Registrable Common Stock registered pursuant Securities to be offered by the Holders in such Effected Demand registration. -4- US Dataworks, Inc. Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;Agreement October 2, 2003
(iiie) each Demand Registration The Holders shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant have the right to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on select the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreementunderwriter or underwriters, if any, that Apollo has entered into with respect subject to such Registration Statement expires, or the date that is 180 days after the effective date approval of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, which approval shall not be unreasonably withheld or during delayed, that will undertake the pendency of a transaction that the Board of Directors sale and distribution from time to time of the Registrable Securities included in a registration statement filed under the provisions of this Section 1.3.
(f) The Company determines in good faith is material shall be obligated to the Company. As used herein, the “Permitted Delay Period” effect only one (1) such demand registrations pursuant to this Section 2(a1.3.
(g) The Holders of Registrable Securities may withdraw their demand for any proposed offering pursuant to a demand registration by giving written notice from a majority of such Holders to the Company of their election to withdraw prior to the effectiveness of the registration statement with the SEC. If such withdrawing Holders pay all registration expenses incurred in connection with such demand registration, then no demand registration shall be a period deemed to have been made for purposes of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than onceSection 1.3(f). If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency such withdrawing Holders do not pay all registration expenses set forth in Section 1.7 of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such demand registration, then such withdrawn Demand Registration registration shall be considered Expenses deemed a demand registration for the purpose purposes of calculating Excess Expenses pursuant to Section 7 hereof1.3(f) above.
Appears in 1 contract
Demand Registrations. Apollo may, at (a) At any time during and from time to time (x) the Term Summit Investors, or (y) the Founders (respectively, the “Initiating Holders”), may request in writing that the Company register under the Securities Act all or any portion of this Agreementthe Registrable Securities held by such Holders, having an anticipated aggregate offering price of not less than US$20,000,000; provided that no Registration Statement need be filed with the Commission prior to the later of (i) one hundred and eighty days following the pricing of the IPO and (ii) the expiration of any “lock-up agreement” entered into with an underwriter in connection with the IPO (unless waived by such underwriter). Upon receipt of such written request, which shall specify the intended method of distribution thereof, the Company shall within ten (10) days deliver notice (a the “Demand Notice”) delivered thereof to all Holders (other than the Holders of such request, as applicable), if any, who shall then have twenty (20) days to notify the Company in writing of their desire to be included in such registration. Subject to the Companyprovisions of Section 2.5 below, require the Company will use its reasonable best efforts to register file a registration statement for such intended method of distribution, as promptly as practicable, but not later than (x) ninety (90) days after such Demand Notice in the case of a registration with a Long-Form Registration Statement and (y) thirty (30) days after such Demand Notice in the case of a registration with a Short-Form Registration Statement, and in each case 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 (a “Demand Registration”) all or part subject to the proviso of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes first sentence of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. 2.1(a)).
(b) Notwithstanding anything to the contrary in the foregoing:
(i) , the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to registration under this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of 2.1: (Ai) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and before one hundred eighty (B180) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of any Registration Statement filed pursuant to Section 2.1(a) (or the later expiration of any extension of any 180-day “lock-up agreement” entered into by the Company or the Holders of Registrable Securities with any underwriters in connection with such Registration Statement. Notwithstanding Statement in connection with any earnings release or other release of material information pursuant to FINRA Rule 2711(f), to the foregoingextent applicable (unless waived by such underwriters)), (ii) before one hundred eighty (180) days after the effective date of a previously effective Registration Statement for an underwritten offering of securities pursuant to a Company-initiated registration (other than pursuant to a registration statement on Form S-4 or S-8) or a Piggy-Back Underwritten Offering (as defined below), in each case in which the Holders were able to sell seventy-five percent (75%) of the Registrable Securities they requested to be included in such registration (or the later expiration of any extension of any 180-day “lock-up agreement” entered into by the Company may delay or the Holders of Registrable Securities with any underwriters in connection with such Registration Statement in connection with any earnings release or other release of material information pursuant to FINRA Rule 2711(f), to the extent applicable (unless waived by such underwriters)), (iii) before ninety (90) days after the effective date of any other previously effective Registration Statement for an underwritten offering of securities pursuant to a Demand Registration for the Permitted Delay Period Company-initiated registration (other than pursuant to a registration statement on Form S-4 or S-8) or a Piggy-Back Underwritten Offering (as defined below) (or the later expiration of any extension of any 90-day “lock-up agreement” entered into by the Company or the Holders of Registrable Securities with any underwriters in connection with such Registration Statement in connection with any earnings release or other release of material information pursuant to FINRA Rule 2711(f), to the extent applicable (unless waived by such underwriters)), or (iv) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of a Company-initiated underwritten registration (other than pursuant to a registration statement on Form S-4 or S-8) or Piggy-Back Underwritten Offering, provided, however, that the Company is actively employing reasonable best efforts to cause such registration statement to be filed and to become effective or to cause such Piggy-Back Underwritten Offering to be effected, and provided, further that nothing in this clause (iii) shall derogate from the date Company’s obligations under Section 2.4 hereof.
(c) The Company shall be obligated to effect only two (2) registrations on Long-Form Registration Statements for each Founder and two (2) registrations on Long-Form Registration Statements for the Summit Investors as a group under this Section 2.1. An unlimited number of registrations on Short-Form Registration Statements shall be effected by the Company first gives Apollo notice of such delay by written notice under this Section 2.1.
(d) A registration shall not be counted as “effected” if (i) after effectiveness, the Registration Statement becomes subject to Apollo stating the reason for and the extent of any such delaystop order, if the Board of Directors injunction or other order of the Company determines in good faith that proceeding with Commission or other governmental agency prior to the proposed sale of all Registrable Securities to be sold thereunder, (ii) the method of disposition is a firm commitment underwritten public offering would have and, as a material adverse effect on the Company, or during the pendency result of a transaction that the Board of Directors an exercise of the Company determines underwriters’ cutback provisions in good faith is material Section 2.3(b), less than seventy-five (75%) of the Registrable Securities requested to the Company. As used herein, the “Permitted Delay Period” be included therein have been sold pursuant to this Section 2(a) shall be a period of days of up to 90 daysthereto; provided, however, that if such registration is the second registration on a Long-Form Registration Statement of the applicable Initiating Holder(s) as described in no event shall Section 2.1(c) hereof, then such percentage such be ninety (90%), or (iii) if the Company delay shall have withdrawn or prematurely terminated a Registration Statement as set forth in Section 2.5.
(e) The Registrable Securities covered by any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary Statement demanded under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency 2.1 shall be distributed by means of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations firm commitment underwritten offering unless otherwise agreed to which Apollo is otherwise entitled and, none in writing by each of the costs Founders and expenses incurred by Apollo or the Company Summit Investors that have requested Registrable Securities be included in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofStatement.
Appears in 1 contract
Demand Registrations. Apollo may(a) Subject to paragraph (b) hereof, at any time during the Term of this Agreement, by written notice (a “Demand Notice”) delivered to the Company, require if the Company to register under the Securities Act shall receive a written request (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations specifying that it is being made pursuant to this Section 2 3.1) from a majority in interest of the Lee ▇▇▇ders, or Transferees thereof who have become parties to this Agreement, that the Company file a registration statement under the 1933 Act, then the Company shall specify (i) promptly (at least thirty (30) days prior to the filing date) give written notice to all other Holders of such request, (ii) with reasonable promptness, and in any case not later than ninety (90) days after receipt by the Company of such written request for a demand registration, file a registration statement with the SEC relating to such Registrable Securities as to which such request for a demand registration relates and (iii) use its commercially reasonable efforts to cause to be registered under the 1933 Act all Registrable Securities of the same class that Holders have requested be registered.
(b) If the total amount of Registrable Securities that all Holders request to be included in an offering exceeds the 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 shares securities which, in the good faith opinion of such underwriters, can be sold, selected PRO RATA based on the number of Registrable Common Stock Securities which each of the Holders requesting to be registered and included owns, or has the intended methods of disposition thereof. Notwithstanding anything right to acquire pursuant to the contrary exercise of Vested Stock Options. Only to the extent that the underwriters reasonably believe that the amount of securities compatible with the success of the offering exceeds the total amount of Registrable Securities that all Holders request to be included in the foregoing:offering, may the Company participate in such offering.
(ic) The Lee ▇▇▇ders, as a group, shall be entitled to request, and the Company shall be obligated to effect, not be required to effect more than two Demand Registrations during the term five (5) registrations of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration Registrable Securities pursuant to this Section 2, the Company 3.1. A registration shall not be required to file another Registration Statement pursuant to this Section 2 deemed effected until 180 days have elapsed from the date on which the registration statement filed with relating thereto has been declared effective, the SEC pursuant to such Effected Demand Registration was declared effective securities covered thereby have been sold, and the proceeds therefrom have been received by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofselling Holders.
Appears in 1 contract
Sources: Stockholders' Agreement (Eye Care Centers of America Inc)
Demand Registrations. Apollo may(a) From and after the expiration of the Initial Open Market Shares Restricted Period, at the Additional Open Market Shares Restricted Period, the Warrant 1 Shares Restricted Period, and/or the Warrant 2 Shares Restricted Period, as applicable, subject to the terms and conditions hereof (x) solely during any time during period that the Term Company is then-ineligible under Applicable Law to register Registrable Securities on Form S-3 or, if the Company is so eligible but has failed to comply with its obligations under Section 4.3 or (y) following the expiration of this Agreementthe Company’s obligation to keep the Shelf Registration Statement continuously effective pursuant to Section 4.3(c), by 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 notice requests of the Company (each, a “Demand NoticeDemand”) delivered to the Company, require the Company to register for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders that equals or is greater than the Registrable Amount (a “Demand Registration” and such registration statement, a “Demand Registration Statement”). Thereupon, the Company will, subject to the terms of this Agreement, use its commercially reasonable efforts to effect the registration as promptly as practicable under the Securities Act of:
(A) the Registrable Securities which the Company has been so requested to register by the Requesting Shareholders for disposition in accordance with the intended method of disposition stated in such Demand;
(B) all or part other Registrable Securities which the Company has been requested to register pursuant to Section 4.1(b), but subject to Section 4.1(g); and
(C) all shares of the Registrable Company Common Stock on behalf which the Company may elect to register in connection with any offering of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made Securities pursuant to this Section 2 shall specify 4.1, but subject to Section 4.1(g); all to the number of shares of Registrable Common Stock extent necessary to be registered and permit the disposition (in accordance with the intended methods thereof) of disposition thereof. Notwithstanding anything the Registrable Securities and the additional shares of Company Common Stock, if any, to the contrary in the foregoing:be so registered.
(b) A Demand shall specify: (i) the Company shall not aggregate number of Registrable Securities requested to be required to effect more than two registered in such Demand Registrations during the term of this Agreement;
Registration, (ii) if the Company has previously effected an Effected intended method of disposition in connection with such Demand Registration pursuant Registration, to this Section 2the extent then known, and (iii) the identity of the Requesting Shareholder(s). Within ten (10) days after receipt of a Demand, the Company shall not be 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 file another Registration Statement pursuant to Section 4.1(g). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected 4.1(b).
(c) A Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required deemed to file another have been effected and shall not count as a Demand Registration (i) unless the Demand Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier with respect thereto has become effective and has remained effective for a period of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares hundred eighty (180) 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 Common Stock; andSecurities refrain from selling any securities included in such registration statement at the request of the Company or the lead managing underwriter(s) pursuant to the provisions of this Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to one hundred eighty (180) days after effectiveness, to any stop order, injunction or other order or requirement of the Commission or other Governmental Authority, other than by reason of any act or omission by the applicable Selling Shareholders.
(ivd) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares Demand Registrations shall be on such appropriate registration form of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective Commission as shall be selected by the SEC, Company and reasonably acceptable to the Requesting Shareholders.
(e) The Company shall not be obligated to file (i) subject to Section 4.1(c), maintain the effectiveness of a Demand Registration Statement before registration statement under the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect Securities Act filed pursuant to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for a period longer than one hundred eighty (180) days or (ii) effect any Demand Registration (A) within six (6) months of a “firm commitment” Underwritten Offering in which all Demand Shareholders were offered “piggyback” rights pursuant to Section 4.2 (subject to Section 4.2(b)) and at least fifty percent (50%) of the Permitted Delay Period number of Registrable Securities requested by such Demand Shareholders to be included in such Demand Registration were included, (as defined belowB) from within six (6) months of the date completion of any other Demand Registration (including, for the avoidance of doubt, any Underwritten Offering pursuant to any Shelf Registration Statement) or (C) if, in the Company’s reasonable judgment, it is not feasible for the Company first gives Apollo notice to proceed with the Demand Registration because of such delay by written notice to Apollo stating the reason for and the extent unavailability of any such delay, if the Board of Directors audited or other required financial statements of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 daysany other Person; provided, however, in no event shall that the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the use its commercially reasonable efforts to obtain such financial statements as promptly as practicable.
(f) The Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by shall be entitled to (1) postpone (upon written notice to the Demand Shareholders) the filing or the effectiveness of a registration statement for any Demand Registration, (2) cause any Demand Registration Statement to be withdrawn and its effectiveness terminated and (3) suspend the use of the prospectus forming the part of any registration statement, in each case in the event of a Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period under clause (ii) of the definition thereof, the Company 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 Company, the conditions described in clause (ii) of the definition of Blackout Period are met. If Apollo withdraws its Such certificate shall contain an approximation of the anticipated delay. Upon notice by the Company to the Demand Notice Shareholders of any such determination, each Demand Shareholder covenants that, subject to Applicable Law, it shall keep the fact of any such notice strictly confidential, and, in the case of a Blackout Period pursuant to this Section 2(aclause (ii)(y) during of the pendency 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 delaynotice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration Statement, each prospectus included therein, and any amendment or supplement thereto by it and any of its Affiliates for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall not constitute be earlier terminated in writing by the Company) and, if so directed in writing by the Company, will deliver to the Company any copies then in the Demand Shareholder’s possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice.
(g) If, in connection with a Demand Registration under this Agreement and shall not reduce that involves an Underwritten Offering, the number lead managing underwriter(s) advise(s) the Company that, in its (their) opinion, the inclusion of Demand Registrations to which Apollo is otherwise entitled and, none all of the costs and expenses incurred by Apollo or the Company securities sought to be registered in connection with such withdrawn Demand Registration would adversely affect the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Demand Shareholders, which, in the opinion of the lead managing underwriter(s), can be sold without adversely affecting the success thereof, pro rata among such Demand Shareholders on the basis of the number of such Registrable Securities requested to be included by such Demand Shareholders; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or 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 considered Expenses for reasonably acceptable to the purpose of calculating Excess Expenses pursuant Company (such acceptance not to Section 7 hereofbe unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Sources: Framework Agreement (Walgreen Co)
Demand Registrations. Apollo may, at (a) At any time during following the Term OFFERING and prior to a date on which the Company shall have obtained a written opinion of this Agreement, by written notice (a “Demand Notice”) delivered legal counsel reasonably satisfactory to PepsiCo and addressed to the Company, require Company and the Company Holders to register the effect that the Shares may be publicly offered for sale in the United States by the Holders without restriction as to manner of sale and amount of securities sold and without registration or other restriction under the Securities Act (such period being the "DEMAND PERIOD"), the Holders shall have the right to require the Company to file a “registration statement under the Securities Act in respect of all or a portion of their Shares (so long as such request covers at least 2% of the shares of Common Stock then outstanding), by delivering to the Company written notice stating that such right is being exercised, specifying the number of the Shares to be included in such registration statement and describing the intended method of distribution thereof (a "DEMAND REQUEST"). As promptly as practicable, but in no event later than forty-five (45) days (one hundred twenty (120) days, if the applicable registration form is other than Form S-3) after the Company receives a Demand Request, the Company shall file with the SEC and thereafter use its best efforts to cause to be declared effective, a registration statement (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the Securities Act if so requested and if the Company is then eligible to use such a registration)(a "DEMAND REGISTRATION") providing for the registration of such number of Shares as the Holders shall have demanded be registered for distribution in accordance with their intended method of distribution.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay, for a reasonable period of time, not to exceed one hundred twenty (120) days in the case of clauses (i) and (ii) below, or sixty (60) days in the case of clause (iii) below (each a "BLACKOUT PERIOD"), the filing of any Demand Registration if the Company shall determine that any such filing or the offering of any Shares would (i) in the good faith judgment of the Board, materially impede, delay or otherwise interfere with any pending or contemplated material acquisition, corporate reorganization or other similar material transaction involving the Company, (ii) based upon advice from the Company's investment banker or financial advisor, materially adversely affect any pending or contemplated financing or offering or sale of any class of securities by the Company, or (iii) in the good faith judgment of the Board require premature disclosure of material 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 stockholders; PROVIDED, HOWEVER, that in the case of a Blackout Period pursuant to clause (i) or (ii) above, the Blackout Period shall earlier terminate upon the completion or abandonment of the relevant securities offering or material sale, financing, acquisition, corporate reorganization or other similar material transaction; and PROVIDED, FURTHER, that in the case of a Blackout Period pursuant to clause (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 of such material non-public information or such time as such material non-public information shall be publicly disclosed without breach by any Holder; and PROVIDED, FURTHER, that in the case of a Blackout Period pursuant to clause (i), (ii) or (iii) above, the Company shall furnish to each Holder a certificate of an executive officer of the Company to the effect that an event permitting a Blackout Period has occurred and to the extent practicable, an approximation of the period of the anticipated delay. Notwithstanding anything herein to the contrary, the Company shall not exercise pursuant to clause (i) and (ii) of the preceding sentence the right to postpone or delay the filing of any Demand Registration more than once in any twelve (12) month period or more than twice pursuant to clause (iii) of the preceding sentence in any twelve (12) month period. Upon notice by the Company to the Holders of any such determination, each of the Holders covenants that it shall keep the fact of any such notice strictly confidential, and, in the case of a Blackout Period pursuant to clause (iii) above or Section 2.1(c) below, promptly halt any offer, sale, trading or transfer by it or any of its Affiliates of any shares 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”) all , each prospectus included therein, and any amendment or part of the Registrable Common Stock on behalf of Apollo supplement thereto by it and any of its Affiliates which hold Registrable Common Stockfor 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 Holder's possession of the prospectus covering such Shares that was in effect at the time of receipt of such notice. Requests After the expiration of any Blackout Period and without further request from Apollo the Holders, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to include shares cause any such Demand Registration to be declared effective as promptly as practicable unless the Holders shall have, prior to the effective date of such Demand Registration, withdrawn in a Piggyback Registration shall not constitute writing their initial request.
(c) Anything in this Agreement to the contrary notwithstanding, in case a Demand Registration for purposes has been filed, if a transaction of this the type specified in Section 2. All requests for 2.1(b)(i) has occurred, the Company may cause such Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock Registration to be registered withdrawn and its effectiveness terminated or may postpone amending or supplementing such Demand Registration for a reasonable period of time, not to exceed the intended methods of disposition thereof. Notwithstanding anything Blackout Period applicable to Section 2.1(b)(i).
(d) The Holders may withdraw a Demand Request in their discretion or in circumstances including, but not limited to, the contrary in the foregoing:
following: if (i) the Company shall is in material breach of its obligations hereunder and has not be required cured such breach after having received notice thereof and a reasonable opportunity to effect more than two Demand Registrations during the term of this Agreement;
do so or (ii) if the withdrawal occurs during a Blackout Period.
(e) The Company has previously effected an Effected Demand Registration may elect to include in any registration statement filed pursuant to this Section 22.1 any Shares to be issued by it or held by any of its subsidiaries or by any Other Holders only to the extent such Shares are 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 Holders and only to the extent the managing underwriter thereof does not reasonably and in good faith advise the Holders prior to the consummation of any Demand Registration that the inclusion in such registration statement of any such Common Stock to be issued by the Company shall or sold by any of its subsidiaries or any Other Holder will not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed create a substantial risk that the price per share of Common Stock that the Holders will derive from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective will be adversely affected or that the number of Shares sought to be registered (including any Shares sought to be registered at the request of the Company and any Other Holder and those sought to be registered by the SEC; provided, that, if the previous Effected Demand Registration was effected by Holders) is a “shelf” registration as requested by Apollo, the Company shall not greater number than can reasonably be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;sold.
(iiif) each The managing underwriter or underwriters for any Demand Registration shall be for at least one million shares selected by PepsiCo, PROVIDED THAT such managing underwriter or underwriters shall be of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereofrecognized national standing, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company underwriters' commissions shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material reasonably satisfactory to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Pepsi Bottling Group Inc)
Demand Registrations. Apollo may(a) Subject to Section 7.3, at any time during following the Term eighteen-month anniversary of this Agreementthe Closing (or with respect to a registration that would become effective following such eighteen-month anniversary, by written notice following the 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 seven (a “Demand Notice”7) delivered separate occasions in the aggregate, and on not more than six (6) separate occasions with respect to any Registrable Securities other than Registrable Securities issued pursuant to Section 4.3 (h) hereof, require (i) prior to the CompanySpin-off, require the Company AT&T to register file a registration statement under the Securities Act (a “Demand Registration”) in respect of all or part 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 Common Stock Securities; provided, in each case, that such request involves Registrable Securities having an aggregate Market Value on behalf the date of Apollo and any delivery of its Affiliates such request of at least $500 million (provided that, with respect to a registration statement which hold relates solely to Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made Securities issued pursuant to this Section 2 4.3(h) hereof, such request shall specify be for (i) that number of Registrable Securities equal to the number of Registrable Securities originally issued to DoCoMo pursuant to Section 4.3(h) hereof or (ii) Registrable Securities with an aggregate Market Value of not less than $300 million )) by delivering to the Issuer written notice stating that such right is being exercised, specifying the number of shares of Registrable Current Wireless Tracking Stock or AT&T Wireless Common Stock to be registered included in such registration (the shares subject to such request, the "Demand Shares") and describing the intended methods method of disposition distribution thereof, which may include an underwritten offering (a "Demand Request"). Notwithstanding anything to Upon receiving a Demand Request, the contrary in the foregoing:
Issuer shall (i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required use all reasonable efforts to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the as promptly as reasonably practicable a registration statement filed with the SEC pursuant to on such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration form as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of it may reasonably deem appropriate (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay Issuer 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") and (ii) after the filing of an initial version of the registration statement, use all reasonable efforts to cause such registration statement to be declared effective under the Securities Act as promptly as practicable after the date of filing of such registration statement. DoCoMo (including any transferee to which DoCoMo shall have transferred registration rights as permitted hereunder) may not exercise more than one Demand Request in any 7 1/2 month period. In the event that a Demand Registration more than once. If Request is delivered to AT&T prior to the Company delays Spin-off, but the Demand RegistrationShares are not registered by the time of consummation of the Spin-off, Apollo may withdraw its such Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration Request shall not constitute a Demand Registration under this Agreement be deemed withdrawn and shall not reduce count for the purposes of determining the number of Demand Registrations to which Apollo DoCoMo is entitled hereunder.
(b) Anything in this Agreement to the contrary notwithstanding, the Issuer shall be entitled to postpone and 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 if the Issuer shall determine that any such filing or the offering of any Registrable Securities would (i) in the good faith judgment of the Board, impede, delay or otherwise entitled interfere with any pending or contemplated material acquisition, corporate reorganization or other similar material transaction involving the Issuer, including without limitation the Spin-off and the proposed Exchange Offer, (ii) based upon advice from the Issuer's investment banker or financial advisor, adversely affect any pending or contemplated financing, offering or sale of any class of securities by the Issuer or the Spin-off or the proposed Exchange Offer or (iii) in the good faith judgment of the Board, require disclosure of material 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 harmful to the best interests of the Issuer and its stockholders; 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. Upon notice by the Issuer to DoCoMo of any such determination, DoCoMo 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 AT&T Wireless 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 Issuer) 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 the Issuer) and, none if so directed by the Issuer, will deliver to the Issuer any copies then in its possession of the costs and expenses incurred by Apollo or the Company in prospectus covering such Registrable Securities.
(c) In connection with an underwritten offering, if the managing underwriter or co-managing underwriter reasonably and in good faith shall have advised the 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 withdrawn offering, the Issuer shall include in such registration the number of Demand Shares that, in the opinion of such managing underwriter or underwriters, can be sold in such offering; provided that if as a result of any reduction pursuant to this paragraph (c) the aggregate Market Value of the Demand Shares to be so included is less than $500 million or, with respect to a registration statement which relates solely to Demand Shares issued pursuant to Section 4.3(h) hereof, the lesser of (i) $300 million or (ii) the aggregate Market Value of that number of Demand Shares equal to the number of Demand Shares which were originally issued pursuant to Section 4.3(h) hereof ), DoCoMo may withdraw such Demand Request with respect to all Demand Shares covered thereby and such registration shall not 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 the Demand Request DoCoMo has given the Issuer the right to select the managing underwriter (reasonably acceptable to DoCoMo) and the managing underwriter so selected by the Issuer makes the determination that results in the reduction pursuant to this paragraph (c) such that the aggregate Market Value of the Demand Shares to be so included is less than $500 million (or, with respect to a registration statement which relates solely to Demand Shares issued pursuant to Section 4.3(h) hereof, the lesser of (i) $300 million or (ii) the aggregate Market Value of that number of Demand Shares equal to the number of Demand Shares which were originally issued pursuant to Section 4.3(h) hereof), then DoCoMo may elect to proceed with the registration, and such registration shall not count for the purposes of determining the number of Demand Registrations to which DoCoMo is entitled under Section 7.1(a).
(d) In connection with any underwritten offering, the managing underwriter or underwriters for such Demand Registration shall be considered Expenses for selected by DoCoMo; provided that such managing underwriter shall be a nationally recognized investment banking firm and shall be reasonably acceptable to the purpose 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 case may be, will be entitled to select the managing underwriter or underwriters. In addition to the foregoing, the Issuer may, at its option, select a nationally recognized investment banking firm reasonably acceptable to DoCoMo to act as a co-managing underwriter. The Issuer shall have the right to approve the selection of calculating Excess Expenses pursuant the counsel to Section 7 hereofany managing underwriter hereunder, which approval will not be unreasonably withheld.
Appears in 1 contract
Demand Registrations. Apollo may, at At any time during that the Term Company is not legally eligible to file a Shelf Registration Statement, the Holders who beneficially own a majority of this Agreement, the outstanding Registrable Securities beneficially owned by written notice (a “Demand Notice”) delivered all Holders shall have the right to the Company, require request the Company to register all or part of the Registrable Securities under the Securities Act (each such right, a “Demand Right”); provided, that each registration made pursuant to a Demand Right must include Registrable Securities in an amount not less than the Minimum Demand Amount. Subject to Section 2.1(d), if the Company shall receive a Request specifying a registration pursuant to a Demand Right, the Company shall file with the SEC, as expeditiously as reasonably possible after the initiation of a Demand Right, a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof (each such registration, but not including a Shelf Registration, a “Demand Registration”) all or part of in accordance with the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything distribution elected by such Holders and shall use its best efforts to the contrary in the foregoing:
(i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of cause such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration to be declared effective under the Securities Act as expeditiously as reasonably possible thereafter. The Company shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant use its best efforts to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on keep the Registration Statement related relating to such Piggy-Back Demand Registration when such Registration Statement is declared continuously effective in order to permit the Prospectus forming a part thereof to be usable by the SECHolders, the underwriters and any brokers or dealers during the period set forth in Section 2.1(g). Notwithstanding the foregoing provisions, the Company shall not be obligated to file a effect, or to take any action to effect, any such Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a2.1(a) shall be a period of days of up to 90 days; provided, however, in no event shall after the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of has initiated two such delay by written notice registrations subsequent to the Company. If Apollo withdraws its Demand Notice date hereof pursuant to this Section 2(a2.1(a) during (counting for these purposes only registrations which have been declared effective and registrations which have been withdrawn by the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations Holders as to which Apollo is otherwise entitled and, none of the costs and Holders have not borne the registration expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereof2.6). A registration shall not be counted as “effected” for purposes of this Section 2.1 until such time as the applicable registration statement has been declared effective by the SEC.
Appears in 1 contract
Sources: Registration Rights Agreement (Lululemon Athletica Inc.)
Demand Registrations. Apollo may(i) Within ten (10) days after receipt of a request for a Demand Registration, at any time during the Term of this Agreement, by Company shall give written notice (the "Notice") of such request to all the Holders (other than the Initiating Holder(s)). Each of the Holders other than the Initiating Holder(s) shall, subject to the other provisions of this Section 2.3, upon receipt of written request therefor within ten (10) days after the Notice is given (the "Election Period"), have the right to include in such Demand Registration the number of Registrable Securities registrable by such Holder pursuant to Section 2.2.1 of this Agreement as of the time such Notice is made (the "Demand Piggyback Shares").
(ii) Registration of the Demand Piggyback Shares requested to be registered by any Holder shall be subject to the following conditions: (A) in respect of a “registration relating to any Underwritten Public Offering, (x) compliance with the "cutback" provisions contained in Section 2.3.2, (y) acceptance by such Holder of the timing and terms and conditions of the subject Underwritten Public Offering (as evidenced by each such Holder and, if applicable, any other participating member of the Istithmar Group, becoming a party to the applicable underwriting agreement) and (z) the Underwriter being of the opinion that the sale of Shares by such Holder and, if applicable, any other participating member of the Istithmar Group, would not have a material and adverse effect on the market for the Shares and, if applicable, any other securities issued by the Company.
(iii) In the event that the Initiating Holder(s) requests the Company to withdraw a Demand Notice”Registration, Holders who shall have elected to register Demand Piggyback Shares as of the date of such withdrawal shall have the right, upon one (1) delivered business day's prior written notice to the Company, require to pursue such registration; provided, however, that the requirements of Section 2.2.1 shall otherwise be satisfied.
(iv) Subject to the foregoing and Section 2.3.2, (A) the Company to register under shall include in such registration all Registrable Securities that the Securities Act Company has received written requests for inclusion therein within the Election Period and (B) thereafter, in the case of a “Demand Registration”) all or part of , the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo Company may elect to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2such registration additional Shares issued by the Company. All requests for Demand Registrations made pursuant to this Section 2 2.3.1 shall specify the aggregate number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereof.of
Appears in 1 contract
Sources: Stock Purchase Agreement (Kerzner International LTD)
Demand Registrations. Apollo may, (a) If at any time during after the Term of this Blackout Period (as defined in the Governance Agreement), by written the Company shall receive a notice from Purchaser that the Company effect a Demand Registration (a “Demand Notice”) delivered ), for all or any portion of the Registrable Securities specified in such Demand Notice, specifying the 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 Companyrestrictions of this Section 2.1, require the Company to register registration under the Securities Act (a “Demand Registration”) all or part of the Registrable Common Stock on behalf Securities for which Purchaser has requested registration under this Section 2.1, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as specified in the Demand Notice) of Apollo and any the Registrable Securities so to be registered.
(b) Subject to the provisions of its Affiliates which hold Registrable Common Stock. Requests from Apollo this Section 2.1, Purchaser shall be entitled to include shares request four (4) Demand Registrations.
(c) Subject to Section 2.1(e), the Company shall file the registration statement in a Piggyback Registration shall not constitute 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 purposes which the Company then qualifies, and which form shall be available for the sale of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and Securities in accordance with the intended methods of disposition distribution thereof. Notwithstanding anything , and shall use its reasonable best efforts to cause the contrary in the foregoing:
(i) the Company shall not same to be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SECSEC as promptly as practicable after such filing; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, that the Company shall not be obligated to file effect a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect pursuant to such Registration Statement expires, or the date that is Section 2.1(a) (i) within 180 days after the effective date of a previous Demand Registration and (ii) unless the Demand Notice is for a number of Registrable Securities with an expected market value that is equal to at least $50,000,000 as of the date of such Registration Statement. Notwithstanding Demand Notice or is for one hundred percent of Registrable Securities.
(d) With respect to any Demand Registration, subject to the foregoingavailability of a registration statement on Form S-3, the Company shall, upon written request from Purchaser, 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) The Company may delay defer the filing (but not the preparation) of a registration statement required by this Section 2.1 until after the Required Filing Date (i) for a period not to exceed 90 days, if, at the time the Company receives the Demand Notice, there exists a Material Disclosure Event, or (ii) 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(e) 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(e), the Company shall promptly (but in any event within 10 days), upon determining to seek such deferral, deliver to Purchaser a certificate signed by an executive officer of the Company stating that the Company is deferring such filing pursuant to this Section 2.1(e), a general statement of the reason for such deferral and an approximation of the anticipated delay. Within 20 days after receiving such certificate, Purchaser 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(e) 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(e) 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.
(f) No securities to be sold for the account of any Person (including the Company), other than Purchaser shall be included in a Demand Registration for if the Permitted Delay Period managing underwriters (as defined belowor, in an offering that is not underwritten, a nationally recognized investment bank) from the date shall advise the Company first gives Apollo notice and Purchaser in writing that the aggregate amount of such delay by written notice securities requested to Apollo stating the reason for and the extent of be included in any offering pursuant to such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would Demand Registration is sufficiently large to have a material an adverse effect on the Companysuccess of any such offering, based on market conditions or during otherwise (an “Adverse Effect”). Furthermore, if the pendency managing underwriters (or such investment bank) shall advise the Company and Purchaser that, even after exclusion of a transaction 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 Purchaser is sufficiently large to cause an Adverse Effect, the Registrable Securities of Purchaser to be included in such Demand Registration shall equal the number of shares which Purchaser is so advised can be sold in such offering without an Adverse Effect; provided, that the Board Company shall not include any Registrable Securities of Directors any executive officer, director or employee of the Company determines or any of its subsidiaries if the managing underwriters (or such investment bank) shall advise the Company and Purchaser that the participation of any such persons may have an Adverse Effect; provided, further that if the number of Registrable Securities to be included in good faith the Demand Registration is material less than 80% of the number requested to be so included, Purchaser may withdraw such Demand Notice by giving notice to the Company. As used herein; if withdrawn, the “Permitted Delay Period” pursuant to this Section 2(a) Demand Notice shall be a period deemed not to have been made for all purposes of days this Agreement and the Company shall pay all expenses of up to 90 dayssuch withdrawn Demand Registration in accordance with Section 2.7; provided, however, in no event shall that if the holders of a majority of the remaining Registrable Securities covered by such Demand Notice desire to proceed with such Demand Registration, the Company delay any shall proceed forward with such Demand Registration and the Demand Notice shall be deemed to have been made for a longer period than all purposes of this Agreement by the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay remaining holders.
(g) Purchaser may withdraw Registrable Securities from a Demand Registration more than once. If at any time and Purchaser shall have the Company delays the right to cancel a proposed Demand Registration, Apollo may withdraw its Demand Notice during the pendency Registration of such delay by written notice to the Company. If Apollo withdraws its Demand Notice Registrable Securities pursuant to this Section 2(a) during the pendency of 2.1(g). Upon such delaycancellation, the Company shall cease all efforts to secure registration and such Demand Registration shall not constitute 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 accordance with Section 2.7.
(h) In any registration requested pursuant to this Section 2.1, the Company shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses register securities other than Registrable Securities for sale for the purpose account of calculating Excess Expenses pursuant any Person (including the Company), unless permitted to Section 7 hereofdo so by the written consent of Purchaser.
Appears in 1 contract
Sources: Registration Rights Agreement (Cornerstone Therapeutics Inc)
Demand Registrations. Apollo may(a) If, at any time during the Term of this Agreement, by written notice (a “Demand Notice”) delivered to the Company, require the Company to register under the Securities Act shall receive a written request (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations specifying that it is being made pursuant to this Section 2 shall specify the number 6(f)(ii)) from Holders of shares a majority of Registrable Common Stock Securities not registered in any then effective Registration Statement that the Company file a registration statement under the Securities Act in connection with an underwritten public offering, then the Company shall send to each Holder a written notice of such request and if within 15 days after the date of such notice, any such Holder shall so request in writing, the Company shall include in such Registration Statement all or any part of such Registrable Securities not registered in any then effective Registration Statement such Holder requests to be registered and the intended methods of disposition thereofshall file such Registration Statement by its Filing Date. Notwithstanding anything Subject to the contrary in the foregoing:
(i) terms of this Agreement, the Company shall not use its good faith commercially reasonable efforts to cause a Registration Statement to be required declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event prior to effect more than two Demand Registrations during the term applicable Effectiveness Date. The Company shall telephonically request effectiveness of this Agreement;such Registration Statement as of 5:00 pm Eastern Time on a Trading Day.
(iib) Notwithstanding the foregoing obligations, if the Company has previously effected an Effected Demand Registration furnishes to Holders requesting a registration pursuant to this Section 26(f)(ii) a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors as evidenced by a board resolution, it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall not be required have the right to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into defer taking action with respect to such Registration Statement expiresfiling, and any time periods with respect to filing or the date that is 180 effectiveness thereof shall be tolled correspondingly, for a period of not more than ninety (90) days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors request of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith Initiating Holders is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 daysgiven; provided, however, in no event shall that the Company delay may not invoke this right more than once in any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; twelve (12) month period, and provided further that in no event shall the Company delay shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period.
(c) The Company shall immediately notify the Holders via facsimile or electronic transmission of the effectiveness of a Demand Registration more than onceStatement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of a Registration Statement. The Company shall, by 9:30 am Eastern Time on the Trading Day after the Effective Date, file a final Prospectus with the Commission as required by Rule 424. Failure to so notify the Holder within one (1) Trading Day of such notification or effectiveness or failure to file a final Prospectus as aforesaid shall be deemed an Event under Section 2(b). If the total amount of Registrable Securities that are to be included at the request of Holders thereof and by the Company delays for its own account and exceeds the Demand Registrationamount of securities that the underwriters reasonably believe compatible with the success of the offering, Apollo may withdraw its Demand Notice during then the pendency of Company will include in such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce registration statement only the number of Demand Registrations securities which in the opinion of such underwriters can be sold, in the following order:
(1) first, the Registrable Securities requested to be included by the Holders pro rata based on the number of Registrable Securities owned by each of them which Apollo is otherwise entitled andeach of them request be included in such registration;
(2) then, none the equity securities to be registered on behalf of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofCompany; and
(3) then, any other equity securities.
Appears in 1 contract
Sources: Registration Rights Agreement (Synvista Therapeutics, Inc.)
Demand Registrations. Apollo may(i) At any time that a Shelf Registration Statement provided for in Section 2.1(e) is not available for use by the Holders following such Shelf Registration Statement being declared effective by the SEC (a “Demand Registration Period”), subject to this Section 2.1(a) and Sections 2.1(b) and 2.3, at any time and from time to time during such Demand Registration Period, (i) each SPC Investor, and (ii) following the Term fifteen (15) month anniversary of this Agreementthe date hereof, by written notice (a “Demand Notice”) delivered each Founder Investor, shall have the right to the Company, require the Company to register effect one or more registration statements under the Securities Act covering all or any part (subject to the Minimum Threshold) of its and its Affiliates’ Registrable Securities by delivering a written request therefor to the Company specifying the number of Registrable Securities to be included in such registration and the intended method of distribution thereof. Any such request by any SPC Investor or Founder Investor pursuant to this Section 2.1(a)(i) is referred to herein as a “Demand Registration Request,” and the registration so requested is referred to herein as a “Demand Registration” (with respect to any Demand Registration, the SPC Investor(s) or Founder Investor(s) making such demand for registration being referred to as the “Initiating Holders”) all or part of ). Subject to Section 2.1(b), the Registrable Common Stock on behalf of Apollo SPC Investors and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo Founder Investors shall be entitled to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered request (and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company shall not be required to effect more than two effect) an unlimited number of Demand Registrations during Registrations. The Company shall give written notice (the term “Demand Exercise Notice”) of this Agreement;
(ii) if the Company has previously effected an Effected such Demand Registration pursuant Request to this Section 2each of the Holders of record of Registrable Securities, as promptly as practicable, but no later than five (5) Business Days prior to the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the filing of any registration statement filed with under the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration StatementSecurities Act. Notwithstanding the foregoing, the Company may delay any Demand Exercise Notice until after filing a registration statement, so long as all recipients of such notice have the same amount of time to determine whether to participate in an offering as they would have had if such notice had not been so delayed.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration for (x) the Permitted Delay Period Registrable Securities of the Initiating Holders and (as defined belowy) from the date Registrable Securities of any other Holder of Registrable Securities which shall have made a written request to the Company first gives Apollo notice for inclusion in such registration pursuant to Section 2.2 (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such delay by written notice to Apollo stating Participating Holder) within five (5) days following the reason for and the extent receipt of any such delayDemand Exercise Notice.
(iii) The Company shall, if as expeditiously as possible, but subject to Section 2.1(b), use its reasonable best efforts to (x) file or confidentially submit with the Board of Directors SEC (no later than (A) sixty (60) days from the Company’s receipt of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any applicable Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, Request if the Demand Registration shall not constitute a is on Form S-1 or similar long-form registration and or (B) thirty (30) days from the Company’s receipt of the applicable Demand Registration Request if the Demand Registration is on Form S-3 or any similar short-form registration), (y) cause to be declared effective as soon as reasonably practicable such registration statement under this Agreement the Securities Act that includes the Registrable Securities which the Company has been so requested to register, for distribution in accordance with the intended method of distribution, including a distribution to, and shall not reduce resale by, the number members or partners of Demand Registrations to which Apollo is otherwise entitled anda Holder (a “Partner Distribution”) and (z) if requested by the Initiating Holders, none obtain acceleration of the costs and expenses incurred by Apollo or effective date of the Company in connection with registration statement relating to such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofregistration.
(iv) [Reserved.]
Appears in 1 contract
Demand Registrations. Apollo may(a) Subject to Section 4.2(b), at any time during the Term of this Agreement, by written notice (a “Demand Notice”) delivered to the Company, require if the Company to register under the Securities Act shall receive a written request (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations specifying that it is being made pursuant to this Section 2 shall specify 4.2) from GPP that the number of shares of Registrable Common Stock Company file a registration statement under the 1933 Act, or a similar document pursuant to be registered and the intended methods of disposition thereof. Notwithstanding anything any other statute then in effect corresponding to the contrary in 1933 Act, covering the foregoing:
registration of at least thirty percent (i30%) of the Registrable Securities, then the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(iii) if the Company has previously effected an Effected Demand Registration completed a Public Offering at least ten (10) days prior to the filing date give written notice to all other Holders of such request in accordance with Section 4.3 and (ii) not later than 90 days after receipt by the Company of a written request for a demand registration pursuant to this Section 24.2 (except that such filing may be coordinated with the close of the fiscal year of the Company), file a registration statement with the SEC relating to such Registrable Securities as to which such request for a demand registration relates and the Company shall not use its commercially reasonable efforts to cause all Registrable Securities of the same class that Holders have requested be required registered pursuant to file another Registration Statement Section 4.3, to be registered under the ▇▇▇▇ ▇▇▇.
(b) The GPP Holders shall be entitled to request, and the Company shall be obligated to effect for the GPP Holders two (2) registrations of Registrable Securities pursuant to this Section 2 until 180 days have elapsed from 4.2 on any form other than S-3 and an unlimited number of registrations if the date on which the registration statement filed with the SEC pursuant Company is eligible to use Form S-3 for such Effected Demand Registration was declared effective by the SECregistration; provided, that, if that GPP may not deliver such request until the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier later of (Aa) the date end of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration Initial Two Year Period and (Bb) the date occurrence of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration StatementMaterial Underperformance Event. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice GPP agrees to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines act in good faith that proceeding with (taking into consideration the proposed offering would have a material adverse effect on current situation of the Company, or during the pendency of a transaction that the Board of Directors of the Company determines ) in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to exercising its rights under this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereof4.2.
Appears in 1 contract
Demand Registrations. Apollo may, at any time (a) Each Holder shall have the right (the “Demand Right”) during the Term term of this Agreement, by written notice (a “Demand Notice”) delivered Agreement to the Company, require the Company to register 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, including, if the Company qualifies, a shelf registration statement relating to the offer and sale of all Registrable Shares by the Holders from time to time in accordance with the methods of distribution elected by such Holders). 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 or part 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 Common Stock Shares to be registered. The Company shall be deemed to have effected a Demand Registration (i) if the demand registration statement is declared effective by the SEC and remains effective for not less than one hundred eighty (180) days (or such shorter period as shall terminate when all Registrable Shares covered by such demand registration statement have been sold or withdrawn), or (ii) if such registration statement relates to an underwritten offering, such longer period as, in the opinion of counsel for the underwriter or underwriters, a prospectus is required by law to be delivered in connection with sales of Registrable Shares by an underwriter or dealer (the applicable period, the “Demand Period”) or (iii) if in connection with a shelf registration statement, the shelf registration statement is continuously effective under the Securities Act in order to permit the prospectus forming a part thereof to be usable by Holders until the date as of which all Registrable Shares have been sold pursuant to the shelf registration statement or another registration statement filed under the Securities Act or the date as of which the Holders are permitted to sell their Registrable Shares without registration under the Securities Act pursuant to Rule 144 under the Securities Act without volume limitation or other restrictions on behalf transfer thereunder. No Demand Registration shall be deemed to have been effected if (i) during the Demand Period such registration is interfered with by any stop order, injunction or other order or requirement of Apollo the SEC or other governmental agency or court or (ii) the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied other than by reason of a wrongful act, misrepresentation or breach of such applicable underwriting agreement by the Holder.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled, upon giving prompt written notice of such action to the Holders, to postpone and delay the filing of any Demand Registration for a period not exceeding 45 days if (i) the Company is conducting or about to conduct an underwritten public offering of its Affiliates securities in which hold Registrable Common Stock. Requests from Apollo the Holder is entitled to include shares join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a Piggyback 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 for purposes of Registration.
(c) Notwithstanding anything contained in this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing3.01:
(i) the Company shall not be required to effect more than two 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 Registrations during Registration by a Holder or within 180 days of the term effective date of this Agreementa prior registration statement registering Ordinary Shares;
(ii) if the Company has previously effected an Effected a Holder shall not be entitled to request a Demand Registration pursuant to this Section 2until 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 another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the a registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected filing of such a registration statement, or the transactions contemplated by a “shelf” registration as requested by Apollosuch 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 another Registration Statement pursuant to this Section 2 until 180 days have elapsed from a registration statement if the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal filing of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expiresregistration statement, or the date that is 180 days after transactions contemplated by such fling, would in the effective date good faith judgment of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines 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 that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency judgment of a transaction that the Board of Directors of the Company determines result in good faith is material to a breach of the Company. As used herein’s financing or other debt documents (including, the “Permitted Delay Period” pursuant to any ancillary documents related thereto).
(d) Notwithstanding anything contained in this Section 2(a3.01, 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 Shares 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 period greater number of days 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 up the relative number of securities originally requested to 90 daysbe registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares in any Demand Registration; provided, however, in no event shall that if the Company delay any Demand Registration for a longer period than the Board lead underwriter of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay an offering involving a Demand Registration more than once. If advises the Holders that have requested such registration that the number of Ordinary Shares that the Company delays intends to include in addition to the Demand Registrationtotal 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, Apollo then the Holders will promptly, so advise the Company and may withdraw its Demand Notice during the pendency of such delay require, by written notice to the Company. If Apollo withdraws its Demand Notice pursuant Company accompanying such advice, that, to this Section 2(a) during the pendency of extent necessary to meet such delaylimitation, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration newly issued Ordinary Shares shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofexcluded from such Demand Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (S.B. Israel Telecom Ltd.)
Demand Registrations. Apollo may(a) Within ten (10) business days following the Closing Date, at any time during the Term of this Agreement, by written notice (Company shall file a “Demand Notice”) delivered Registration Statement with the Commission relating to the Companyresale of all of each Stockholder's Registrable Shares. Thereupon, require the Company shall use its best efforts to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register under the Securities Act (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 23. All requests for Demand Registrations made Any Registration Statement filed pursuant to this Section 2 3 shall specify the number of shares of Registrable Common Stock be for an offering to be registered made on a delayed or continuous basis pursuant to Rule 415 of the Securities Act and such Registration Statement shall provide that following the intended methods Closing Date no more than 100,000 Registrable Shares shall be sold by any Stockholder during the thirty (30) day period ending on the 15th day of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
each month commencing December 15, 1997 and ending October 15, 1998, provided (i) the Company shall not be required to effect more than two Demand Registrations that during the term first 30 day period in which Registrable Shares may be sold, each of Drs. Roth▇▇▇ ▇▇▇ Brow▇ ▇▇▇ll be entitled to sell an additional 20,000 Registrable Shares apiece, such additional shares to be in addition to, and not in limitation of, any rights of the Stockholders to sell any Registrable Shares under this Agreement;
section 3, and (ii) if that any Registrable Shares which cannot be sold in any such thirty (30) day period because such Registration Statement has not yet become effective, may be sold immediately upon its becoming effective, and provided, further, that no limitation shall apply on and after October 15, 1998. No term or provision of this Agreement shall be construed to restrict any Stockholder's ability to transfer its Registrable Shares to any party by any means other than a Registration Statement filed pursuant hereto.
(c) In the Company has previously case of any registration effected an Effected Demand Registration pursuant to this Section 23, the Company Stockholders shall not be required have the right to file another Registration Statement pursuant designate the managing underwriter in any underwritten offering, subject to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier approval of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, which approval may not be unreasonably withheld or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofdelayed.
Appears in 1 contract
Demand Registrations. Apollo may(i) Subject to Sections 2.1(b), 2.1(e) and 2.3 below, (x) at any time during and from time to time, in the Term case of this Agreementany ▇▇▇▇▇ Party, by written notice (y) at any time and from time to time after the earlier of (A) six (6) months following the closing of an IPO and (B) the first anniversary of the date hereof in the case of any GSCP Party or (z) at any time and from time to time after six (6) months following the closing of an IPO in the case of any other Holder, such Holder or a “Demand Notice”) delivered group of Holders shall have the right to the Company, require the Company to register file a registration statement under the Securities Act (a “Demand Registration”) covering all or any permitted part of their respective Registrable Securities, by delivering a written request therefor to the Company specifying the number of Registrable Common Stock on behalf Securities to be included in such registration by such Holder or group of Apollo Holders and any the intended method of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2distribution thereof. All requests for Demand Registrations made pursuant to this Section 2 2.1(a)(i) are referred to herein as "Demand Registration Requests," and the registrations requested are referred to herein as "Demand Registrations." As promptly as practicable, but no later than ten days after receipt of a Demand Registration Request, the Company shall give written notice of such Demand Registration Request to all Holders of record of Registrable Securities.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Holder(s) which requested such registration and (y) the Registrable Securities of any Holder which shall have made a written request to the Company for registration thereof in accordance with the provisions of Section 2.2. (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Holder) within 30 days after the receipt of written notice (or, 15 days if, at the request of the Holder(s) which requested such registration, the Company states in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on Form S-3 )
(iii) The Company shall, as expeditiously as possible following a Demand Registration Request, use its best efforts to (x) effect such registration under the Securities Act of the Registrable Securities which the Company has been so requested to register, for distribution in accordance with such intended method of distribution, and (y) if requested by the Holder(s) which requested such registration, obtain acceleration of the effective date of the registration statement relating to such registration.
(b) The Demand Registration rights granted to the Holders in Section 2.1(a) are subject to the limitations set forth in Section 4.6(a) and to the following limitations: (i) each Demand Registration Request must include Registrable Securities either (A) having an aggregate market value of at least $15,000,000, which market value shall be determined by multiplying the number of Registrable Securities to be included in the Demand Registration by the proposed per share offering price thereof or (B) the case of an IPO, in an amount equal to fifty percent of the number of shares of Registrable Common Stock which may be acquired upon the conversion of all of the shares of Preferred Stock presently held by the GSCP Parties (the "Preferred Stock Conversion Shares") (provided that the limitations set forth in this clause (i) shall not be in effect at any time the Holders' Registrable Securities would otherwise be able to be registered and sold under Rule 144 under the intended methods of disposition thereof. Notwithstanding anything Securities Act but for the Company's failure to comply with the information requirements thereunder, unless at such time, the Company's outside counsel (which shall be reasonably acceptable to the contrary in Holders requesting such registration) delivers a written opinion of counsel to such Holders to the foregoing:
effect that such Holders' Registrable Securities may be publicly offered and sold without registration under the Securities Act); (iii) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the cause a registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related 2.1(a)(i) to such Piggy-Back Registration when such Registration Statement is be declared effective by the SEC, the Company shall not be obligated to file within a Demand Registration Statement before the earlier period of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, any other registration statement of the Company may delay (other than a Demand Registration for the Permitted Delay Period registration statement on Form S-8); (as defined belowiii) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines Company, in its good faith judgment, determines that proceeding any registration of Registrable Securities should not be made or continued because it would materially interfere with or materially adversely affect, any material financing, acquisition, disposition of assets or stock, corporate reorganization or merger or other transaction involving the proposed offering Company or any of its subsidiaries or would require the Company to make public disclosure of information the public disclosure of which would not otherwise then be required and which would have a material adverse effect on upon the Company or the value of the Company's Stock (a "Valid Business Reason"), the Company may postpone filing a registration statement relating to a Demand Registration Request until such Valid Business Reason no longer exists, but in no event for more than six months, and, in case a registration statement has been filed relating to a Demand Registration Request, if the Valid Business Reason has not resulted from actions taken by the Company, the Company may cause such registration statement to be withdrawn and its effectiveness terminated or during may postpone amending or supplementing such registration statement; and the pendency Company shall give written notice of its determination to postpone or withdraw a transaction registration statement and of the fact that the Board Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof; and (iv) the offering of Directors of the Company determines in good faith is material Registrable Securities requested to the Company. As used herein, the “Permitted Delay Period” be registered pursuant to this Section 2(a2.1(a)(i) shall be pursuant to a firm commitment underwritten offering unless the Company has previously sold Registrable Securities pursuant to a registration statement under the Securities Act. If the Company shall give any notice of postponement or withdrawal of any registration statement, the Company shall not, during the period of days postponement or withdrawal, register any Common Stock, other than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in effect) or a registration on any registration form that does not permit secondary sales. Each Holder of up Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to 90 dayswithdraw any registration statement pursuant to clause (iii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement and, if so directed by the Company, will deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in such Holder's possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice. If the Company shall have withdrawn or prematurely terminated a registration statement filed under Section 2.1(a)(i) (whether pursuant to clause (iii) above or as a result of any stop order, injunction or other order or requirement of the Commission or any other governmental agency or court), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement, the Company shall, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event later than six months after the date of the postponement), use its best efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.1 (unless the Holder(s) delivering the Demand Registration Request shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of this Agreement), and such registration shall not be withdrawn or postponed pursuant to clause (iii) above.
(c) The Company, subject to Sections 2.3 and 2.6, may elect to include in any registration statement and offering made pursuant to Section 2.1(a)(i), authorized but unissued shares of Common Stock or shares of Common Stock held by the Company as treasury shares; provided, however, that such -------- ------- inclusion shall be permitted only to the extent that it is pursuant to and subject to the terms of the underwriting agreement or arrangements, if any, entered into by the Holders exercising the Demand Registration rights granted to the Holders under Section 2.1(a)(i).
(d) Subject to any provisions in no event shall the Company delay Purchase Agreement or the Stockholder Agreement, the managing underwriter for any Demand Registration shall be selected by the party or parties making the demand for such registration, provided that such underwriter shall be reasonably satisfactory to the Company.
(e) Notwithstanding any other provision of this Agreement, no Person other than a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event ▇▇▇▇▇ Party or a GSCP Party shall the Company delay be entitled to make a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice Request pursuant to this Section 2(a2 until six (6) during months following the pendency closing of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofan IPO.
Appears in 1 contract
Sources: Registration Rights Agreement (Pny Technologies Inc)
Demand Registrations. Apollo may, at any time during the Term of this Agreement, by written notice (a “Demand Notice”i) delivered to the Company, require If the Company to register under the Securities Act shall receive a written request (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations specifying that it is being made pursuant to this Section 2 shall specify 9(b)) from Two Thirds Preferred Holders that the number of shares Company file a registration statement under the Securities Act covering the registration for the offer and sale of Registrable Common Stock Securities, then as soon as practicable thereafter, the Company shall cause all such Registrable Securities to be registered under the Securities Act. The Series B, Series C, Series D and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company Series E Stockholders shall not be required entitled to effect require the Company to cause to become effective more than two Demand Registrations during the term of (2) registration statements pursuant to which Registrable Securities are sold pursuant to this Agreement;Section 9(b).
(ii) if If the Holders initiating the registration intend to distribute the Registrable Securities by means of an underwriting, they shall so advise the Company has previously effected an Effected Demand Registration pursuant in their request. In the event such registration is underwritten, the right of the other Holders to this Section 2participate shall be conditioned on such Holders' participation in such underwriting. Upon receipt of any such request, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo promptly give written notice of such delay proposed registration to all Holders. Such Stockholders shall have the right, by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by giving written notice to the CompanyCompany within thirty (30) days after the Company provides its notice, to elect to have included in such registration such of their Registrable Securities as such Holders may request in such notice of the offering. If Apollo withdraws Thereupon, the Company shall, as expeditiously as possible, use its Demand Notice pursuant best efforts to this Section 2(a) during effect the pendency registration of all Registrable Securities which the Company has been requested to so register. In the event the Series B, Series C, Series D and Series E Holders reasonably determine that the registration of Registrable Securities of the other Holders would interfere with or be detrimental to such offering, the Series B, Series C, Series D and Series E Holders shall have the right, upon written notice to such other Holders to limit such Registrable Securities to be registered to the largest number which would not, in the reasonable opinion of such delaySeries B, the Demand Registration shall not constitute a Demand Registration under this Agreement Series C, Series D and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled andSeries E Holders, none of the costs and expenses incurred by Apollo result in such interference or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofdetriment.
Appears in 1 contract
Sources: Stockholders and Registration Rights Agreement (Visual Networks Inc)
Demand Registrations. Apollo may, If at any time during after December 31, 1998, -------------------- and prior to January 1, 2006, the Term holder(s) of at least twenty-five percent (25%) of the Registrable Securities shall notify the Company in writing that such holders intend to offer or cause to be offered for sale at least twenty- five percent (25%) of such Registrable Securities and shall request the Company to cause such Registrable Securities to be registered under the Securities Act, the Company will use its best efforts as soon as practicable thereafter to register such Registrable Securities (together with any other Registrable Securities requested by the holders thereof to be included in such registration pursuant to Section 5.3 within 15 days after receipt of a notice from the Company pursuant to Section 5.3) in accordance with the registration procedures set forth in Section 5.5. hereof. Such rights to require registration shall be in addition to the rights of the holders under Sections 5.3 and 5.5 and shall be available to holders, acting pursuant to this Agreement, by written notice on not more than a cumulative total of two (2) occasions; provided, however, that each such registration right shall be deemed to have been used only upon such registration statement becoming and remaining effective in accordance with the provisions hereof. The Company shall, within five days of receipt of a “Demand Notice”) delivered to the Company, require the Company to register under the Securities Act (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration request for purposes of this Section 2. All requests for Demand Registrations made registration pursuant to this Section 2 shall specify the number 5.4, notify each holder of shares of Registrable Common Stock such request and permit each holder to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to join such Effected Demand Registration was declared effective by the SECrequest; provided, thatthat such holder, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 within 15 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal receipt of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant notification, so indicates in writing to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by Company. Notwithstanding the SECforegoing, the Company shall not be obligated to file effect a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” registration pursuant to this Section 2(a5.4 during the period starting with the date thirty (30) shall be days prior to the Company's estimated date of filing of, and ending on a period date three (3) months following the effective date of; a registration statement pertaining to an underwritten public offering of days securities for the account of up the Company provided that the Company is actively employing in good faith all reasonable efforts to 90 dayscause such registration statement to become effective and that the Company's estimate of the date of filing such registration statement is made in good faith; provided, however, in that no event shall such registration statements filed by the Company delay any Demand Registration shall preclude the holders of the Registrable Securities from exercising a registration right hereunder this Section 5.4 for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereof90 days.
Appears in 1 contract
Sources: Series a Cumulative Convertible Preferred Stock Purchase Agreement (Sunbelt Nursery Group Inc)
Demand Registrations. Apollo may, at (a) At any time during and from time to time after the Term earlier of this AgreementSeptember 1, 1998 or the effectuation of an Initial Public Offering by written notice (a “Demand Notice”) delivered to the Company, require holders of a majority of the shares of Stock held by the Jordan Investors (other than MCIT) and the FNBB Affiliate may request in writing that the Company to register effect the registration under the Securities Act (a “Demand Registration”) of all or part of such holders' Registrable Securities, specifying in the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify request the number of shares and type of Registrable Common Stock Securities to be registered by each such holder and the intended methods method of disposition thereofthereof (such notice is hereinafter referred to as a "Holder Request"). Notwithstanding anything Upon receipt of such Holder Request, the Company will promptly give written notice of such requested registration to all other holders of Registrable Securities, which other holders shall have the contrary right to include the Registrable Securities held by them in such registration and thereupon the foregoingCompany will, as expeditiously as possible, use its best efforts to effect the registration under the Securities Act of:
(i) the Registrable Securities which the Company shall not be required has been so requested to effect more than two Demand Registrations during the term of this Agreement;register by such requesting Stockholders; and
(ii) if all other Registrable Securities which the Company has previously effected an Effected Demand Registration pursuant been requested to this Section 2, register by any other holder thereof by written request given to the Company within 30 calendar days after the giving of such written notice by the Company (which request shall not be required specify the intended method of disposition of such Registrable Securities), all to file another Registration Statement pursuant the extent necessary to this Section 2 until 180 days have elapsed from permit the date on which the registration statement filed disposition (in accordance with the SEC pursuant intended methods thereof as aforesaid) of the Registrable Securities so to such Effected Demand Registration was declared effective by the SECbe registered; provided, thathowever, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, that the Company shall not be obligated to file a Demand Registration Statement before registration statement relating to any Holder Request under this Section 6.1(a):
(x) unless the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into Company shall have received requests for such registration with respect to at least 15% of the shares of Common Stock then outstanding (including all Warrant Stock) with respect to the first Holder Request, and unless the Company shall have received requests for such Registration Statement expiresregistration with respect to 10% of the shares of Common Stock then outstanding with respect to each Holder Request under this Section 6 thereafter;
(y) other than a registration statement on Form S-3 or a similar short form registration statement, or the date that is 180 days within a period of 12 months after the effective date of such Registration Statement. Notwithstanding any other registration statement relating to any registration request under this Section 6.1(a) that was not effected on Form S-3 (or any similar short form); or
(z) within a nine-month period immediately following the foregoing, effective date of a registration previously effected by the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days6.1; provided, further, however, in no event shall that the Company delay may postpone for not more than 90 calendar days, on one occasion only with respect to each request for registration made under this Section 6.1(a), the filing or effectiveness of a registration statement under this Section 6.1(a) if the Company and a majority of the Jordan Investors agree that such registration might reasonably be expected to have an adverse effect on any Demand Registration for a longer period proposal or plan by the Company to engage in any acquisition of assets (other than in the Board ordinary course of Directors determines in good faith is necessary under the existing circumstancesbusiness) or any merger, consolidation, tender offer or similar transaction; provided further provided, that in no event shall such event, the holders of Registrable Securities initiating the request for such registration will be entitled to withdraw such request, and if such request is withdrawn such registration will not count as one of the permitted registrations under this Section 6.1. In any event, the Company delay a Demand will pay all Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company Expenses in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to any registration initiated under this Section 7 hereof6.1.
Appears in 1 contract
Demand Registrations. Apollo may(a) Subject to the terms and conditions hereof, at (x) solely during any time during period that the Term Company is then ineligible under Applicable Law to register Registrable Securities on Form S-3, or if the Company is so eligible but has failed to comply with its obligations under Section 4.3 or (y) following the expiration of this Agreementthe Company’s obligation to keep the Shelf Registration Statement continuously effective pursuant to Section 4.3(c), by 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 notice requests of the Company (each, a “Demand NoticeDemand”) delivered to the Company, require the Company to register for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders that equals or is greater than the Registrable Amount (a “Demand Registration” and such registration statement, a “Demand Registration Statement”) all or part ). Thereupon, the Company shall, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable (including reasonable best efforts to effect the registration no less than 30 days after receipt of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify Demand) under the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoingSecurities Act of:
(i) the Registrable Securities which the Company shall not be required has been so requested to effect more than two Demand Registrations during register by the term Requesting Shareholders for disposition in accordance with the intended method of this Agreementdisposition stated in such Demand;
(ii) if all other Registrable Securities which the Company has previously effected an Effected Demand Registration been requested to register pursuant to Section 4.1(b), but subject to Section 4.1(g); and
(iii) all shares of Company Common Stock which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 24.1, but subject to Section 4.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and 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 five (5) days after receipt of a Demand, the Company shall not be 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 five (5) days after the Company’s notice required by this paragraph has been given, subject to file another Registration Statement pursuant to Section 4.1(g). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected 4.1(b).
(c) A Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required deemed to file another have been effected (i) unless the Demand Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier with respect thereto has become effective and has remained effective for a period of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares hundred twenty (120) 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 Common Stock; andSecurities refrain from selling any securities included in such registration statement at the request of the Company or the lead managing underwriter(s) pursuant to the provisions of this Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to one hundred twenty (120) days after effectiveness, to any stop order, injunction or other order or requirement of the Commission or other Governmental Authority, other than by reason of any act or omission by the applicable Selling Shareholders.
(ivd) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares Demand Registrations shall be on such appropriate registration form of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective Commission as shall be selected by the SEC, Company and reasonably acceptable to the Requesting Shareholders.
(e) The Company shall not be obligated to file (i) subject to Section 4.1(c), maintain the effectiveness of a Demand Registration Statement before registration statement under the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect Securities Act filed pursuant to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for a period longer than one hundred eighty (180) days or (ii) effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Demand Shareholders were offered “piggyback” rights pursuant to Section 4.2 (subject to Section 4.2(b)) and at least fifty percent (50%) of the Permitted Delay Period number of Registrable Securities requested by such Demand Shareholders to be included in such Demand Registration were included, (as defined belowB) from within ninety (90) days of the date completion of any other Demand Registration (including, for the avoidance of doubt, any Underwritten Offering pursuant to any Shelf Registration Statement) or (C) if, in the Company’s reasonable judgment, it is not feasible for the Company first gives Apollo notice to proceed with the Demand Registration because of such delay by written notice to Apollo stating the reason for and the extent unavailability of any such delay, if the Board of Directors audited or other required financial statements of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 daysany other Person; provided, however, in no event shall that the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the use its reasonable best efforts to obtain such financial statements as promptly as practicable.
(f) The Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by shall be entitled to (i) postpone (upon written notice to the Demand Shareholders) the filing or the effectiveness of a registration statement for any Demand Registration, (ii) cause any Demand Registration Statement to be withdrawn and its effectiveness terminated and (iii) suspend the use of the prospectus forming the part of any registration statement, in each case in the event of a Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period under clause (ii) of the definition thereof, the Company 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 Company, the conditions described in clause (ii) of the definition of Blackout Period are met. If Apollo withdraws its Such certificate shall contain an approximation of the anticipated delay. Upon notice by the Company to the Demand Notice Shareholders of any such determination, each Demand Shareholder covenants that, subject to Applicable Law, it shall keep the fact of any such notice strictly confidential, and, in the case of a Blackout Period pursuant to this Section 2(aclause (ii)(y) during of the pendency 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 delaynotice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration Statement, each prospectus included therein, and any amendment or supplement thereto by it and any of its Affiliates for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall not constitute be earlier terminated in writing by the Company) and, if so directed in writing by the Company, will deliver to the Company any copies then in the Demand Shareholder’s possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice.
(g) If, in connection with a Demand Registration under this Agreement and shall not reduce that involves an Underwritten Offering, the number lead managing underwriter(s) advise(s) the Company that, in its (their) good faith opinion, the inclusion of Demand Registrations to which Apollo is otherwise entitled and, none all of the costs and expenses incurred by Apollo or the Company securities sought to be registered in connection with such withdrawn Demand Registration would adversely affect the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Demand Shareholders, which, in the good faith opinion of the lead managing underwriter(s), can be sold without adversely affecting the success thereof, pro rata among such Demand Shareholders on the basis of the number of such Registrable Securities requested to be included by such Demand Shareholders; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or 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 considered Expenses for reasonably acceptable to the purpose of calculating Excess Expenses pursuant Company (such acceptance not to Section 7 hereofbe unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Sources: Shareholder Agreement (Atlas Air Worldwide Holdings Inc)
Demand Registrations. Apollo may(a) Requests for Registration From and after the occurrence of the initial ------------------------- public offering of the Company's Common Shares under the Securities Act, any Holder or Holders who collectively hold Registrable Securities representing at least 5% of the Company's Common Shares, on a fully-diluted basis, shall have the right at any time during the Term of this Agreement, by written notice from time to time (a “Demand Notice”) delivered subject to the Companylimitations below), require the Company to register request registration under the Securities Act (a “Demand Registration”) of all or part of the their Registrable Common Stock Securities on behalf of Apollo and Form ▇-▇, ▇-▇ (or any of its Affiliates which hold Registrable Common Stocksuccessor form to Form ▇-▇, ▇-▇ or any other short-form registration statement (each, a "Demand Registration"). Requests from Apollo to include shares in a Piggyback Registration shall not constitute a ------------------- A Demand Registration on Form S-3 shall take priority over any other form of registration statement, if available. The request for purposes of this Section 2. All requests for the Demand Registrations made pursuant to this Section 2 Registration shall specify the approximate number of shares of Registrable Common Stock Securities requested to be registered and the intended methods of disposition thereof. Notwithstanding anything registered, which must have a minimum expected aggregate offering price to the contrary in the foregoing:
(i) the Company shall not be required to effect more than two Demand Registrations during the term public of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2at least $5,000,000. Within 10 days after receipt of any such request, the Company shall not be required will give written notice of such requested registration to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the all other Holders of Registrable Securities. The Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days include such other Holders' Registrable Securities in such offering if they have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 responded affirmatively within 10 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors receipt of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency 's notice. Each of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) EIS and DMI shall be a period of days of up permitted to 90 daysone Demand Registration; provided, however, that the Holders in no event shall the Company delay any aggregate will be entitled to request one Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay hereunder within any 12-month period. A registration will not count as a Demand Registration more than once. If the Company delays the until it has become effective (unless such Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice Registration has not become effective due solely to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none fault of the costs and expenses incurred Holders requesting such registration, including a request by Apollo or the Company in connection with such withdrawn Demand Registration shall Holders that such registration be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofwithdrawn).
Appears in 1 contract
Demand Registrations. Apollo may, at (i) At any time during the Term of this Agreement, by written notice (a “Demand Notice”) delivered to the Company, require the Company to register under the Securities Act (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo from and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
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
(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 to effect more than two Demand Registrations during in the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration event such registration statement is a "shelf" that only covers a non-underwritten offering pursuant to this Section 2, Rule 415 of the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SECSecurities Act); provided, thathowever, if the previous Effected Demand Registration was effected that any other Holder of Registrable Securities may elect, by a “shelf” registration as requested by Apollo, giving written notice to such effect to the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 no later than 15 business days have elapsed from after the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;Company
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights In the event that, following any election pursuant to Section 3 hereof, and 2(a)(i) hereof but prior to the filing of a registration statement in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoingelection, the Company may delay a Demand Registration for the Permitted Delay Period (as defined belowA) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines Company, in its reasonable judgment and in good faith faith, resolves that proceeding the filing of such registration statement and the offering of Registrable Securities pursuant thereto would materially interfere with the proposed offering would have a material adverse effect on any significant acquisition, corporate reorganization or other similar transaction involving the Company, or during the pendency of a transaction that the Board of Directors of and (B) the Company determines in good faith is material to gives the Company. As used hereinHolders having made such election written notice of such determination (which notice shall include a copy of such resolution), the “Permitted Delay Period” pursuant Company shall, notwithstanding the provisions of Section 2(a)(i) hereof, be entitled to this Section 2(a) shall be a period of days of postpone for up to 90 daysdays the filing of any registration statement otherwise required to be prepared and filed by it pursuant to Section 2(a)(i) hereof; provided, however, in that no event shall the Company delay such postponement may be effected if any Demand Registration for other postponement of a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice registration pursuant to this Section 2(a) 2 was in effect during the pendency 12 months immediately preceding the commencement of such delaypostponement, unless any Holders having made elections during the Demand Registration previous postponement shall not constitute a Demand Registration under this Agreement and shall not reduce have had the number of Demand Registrations opportunity to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses register their Registrable Securities pursuant to Section 7 hereofan effective registration statement prior to the current postponement.
Appears in 1 contract
Sources: Registration Rights Agreement (Optimark Holdings Inc)
Demand Registrations. Apollo may, at (i) At any time during after the Term Closing Date, the Holders of this Agreement, a majority of the then outstanding Registrable Securities held by written notice all Holders (a the “Demand NoticeInitiating Holders”) delivered to the Company, require may request that the Company to register under the Securities Act all or any portion of the Registrable Securities held by such Initiating Holders (a “Demand RegistrationRegistration Statement”). Upon receipt of such request, the Company shall promptly deliver notice of such request to all other Holders, if any, who shall then have ten (10) Business 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 to participate in such registration shall be conditioned upon such Holder’s 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 use its reasonable best efforts to effect the registration of all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made Securities whose Holders request, pursuant to this Section 2 2(c)(i), participation in such registration under the Securities Act and to qualify such Registrable Securities for sale under any state blue sky law; provided that the Company shall specify not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the number Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary process in the foregoing:
any such jurisdiction; provided further that (iA) the Company shall not be required to effect registration pursuant to a request under this Section 2(c)(i) more than two Demand Registrations during the term of this Agreement;
(ii2) times if the Company has previously effected an Effected Demand Registration pursuant Total Aggregate Preferred Stock Issue Price is greater than or equal to this Section 2, $50,000,000 and (B) the Company shall not be required to file another effect registration pursuant to a request under this Section 2(c)(i) more than one (1) time if the Total Aggregate Preferred Stock Issue Price is greater than or equal to $25,000,000 and less than $50,000,000, it being understood that the Company shall have no obligation to effect registration pursuant to a request under this Section 2(c)(i) if the Total Aggregate Preferred Stock Issue Price is less than $25,000,000. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2(c)(i) within ninety (90) days after the effective date of a Registration Statement filed by the Company covering a firm commitment underwritten public offering in which the Holders shall have been entitled to join pursuant to this Section 2 until 180 days 2(c)(i) or Section 2(g) hereof and in which there shall have elapsed from been effectively registered all shares of Registrable Securities as to which registration shall have been so requested subject to the date on which ability of the registration statement filed with managing underwriter or underwriters of such firm commitment underwritten public offering to reduce the SEC number of Registrable Securities pursuant to such Effected Section 2(c)(ii). A registration will not count as a requested registration under this Section 2(c)(i) until the Demand Registration was Statement relating to such registration has been declared effective by the SECCommission at the request of the Initiating Holders; provided, thathowever, that if the Initiating Holders shall request, in writing, that the Company withdraw a Demand Registration Statement which has been filed under this Section 2(c)(i) but has not yet been declared effective, the Initiating Holders may thereafter request the Company to reinstate such Demand Registration Statement, if permitted under the previous Effected Securities Act, or to file another Demand Registration was effected Statement, in accordance with the procedures set forth herein. In addition, a registration will not count as a requested registration under this Section 2(c)(i) in the event that any Registrable Securities sought to be included by the Holders in such registration are excluded from such registration in accordance with Section 2(c)(ii) or Section 2(g).
(ii) If the managing underwriter or underwriters of an underwritten public offering reasonably determine in writing that the number of 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 “shelf” number deemed satisfactory by such managing underwriter or underwriters; provided, however, that securities shall be excluded in the following sequence: (i) first, shares of Common Stock held by any stockholder not having rights to include such shares in the underwritten public offering; (ii) second, Registrable Securities held by all Holders other than the Initiating Holders; (iii) third, Registrable Securities held by the Initiating Holders; and (iv) fourth, shares of Common Stock sought to be registered by the Company for its own account. If there is a reduction of some but not all of the number of shares pursuant to clauses (i) through (iv), such reduction shall be made on a pro rata basis (based upon the aggregate number of securities held by the holders in the applicable category and subject to the priorities set forth in the preceding sentence).
(iii) With respect to a request for registration as requested by Apollopursuant to Section 2(c)(i), which is for an underwritten public offering, the managing underwriter shall be chosen by the Initiating Holders, subject to the consent of the Company, which consent shall not be unreasonably withheld or delayed. The Company shall not be required to file another Registration Statement register any Registrable Securities pursuant to this Section 2 until 180 days have elapsed from 2(c) unless the earlier Holders of (A) such Registrable Securities accept the date terms of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, underwriting agreed upon between the Company and the managing underwriter or underwriters. All Holders proposing to distribute their securities through such underwriting shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into (together with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined belowand any other stockholders proposing to distribute their securities through such underwriting) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines enter into an underwriting agreement in good faith that proceeding customary form with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofunderwriters.
Appears in 1 contract
Sources: Registration Rights Agreement (Rehabcare Group Inc)
Demand Registrations. Apollo may, at (a) At any time during after the Term Lock-up Period, any one or more Investors holding at least 50% of this Agreement, by written notice (a “Demand Notice”) delivered to the Company, require the Company to register Registrable Shares may request 5 66 registration under the Securities Act (a “Demand Registration”) of all or part of the their Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration Shares for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary sale in the foregoing:
(i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to manner specified in such Effected Demand Registration was declared effective by the SECrequest; provided, thathowever, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, that the Company shall not be obligated to file register Registrable Shares pursuant to this Section 5.1(a) on more than one occasion in the aggregate, or after the additional take-down referred to in Section 5.3(d); provided further that the Company shall not be obligated to register Registrable Shares pursuant to this Section 5.1(a) (i) within one year after the effectiveness of any Piggyback Registration in connection with which either the requesting Investors declined to avail themselves of the opportunity to include their Registrable Shares therein or at least 50% of the Registrable Shares they requested to be included in such registration were so included, or (ii) until the expiration of the later of (x) such one-year period and (y) the 90-day period commencing with such request, if the Company delivers notice to the holders of Registrable Shares as soon as practicable after any request hereunder that the Company in good faith believes that it will offer Piggyback Registration to the Investors pursuant to Section 5.2 within 90 days of such request. All registrations requested pursuant to this Section 5.1(a) shall be referred to herein as "Demand Registrations".
(b) A registration will not count as a Demand Registration Statement before the earlier for purposes of the date on which first proviso to Section 5.1(a) unless it has become effective and the lock-up Investor or Investors requesting such registration are able to register and sell at least 50% of the Registrable Shares they requested to be included in such registration.
(c) The Company and the holders of a majority of the Registrable Shares to be sold pursuant to a Demand Registration shall, upon mutual agreement, designate one or more managing underwriters of nationally recognized standing, if anyapplicable, for such offering. If the managing underwriters advise the Company in writing that Apollo has entered into with respect in their opinion the number of Registrable Shares and other securities requested to be included (i) creates a substantial risk that the price per share in such Registration Statement expiresregistration will be materially and adversely affected or (ii) exceeds the number of Registrable Shares and other securities that can be sold in such offering, then the Company will include in such registration, prior to the inclusion of any securities that are not Registrable Shares, the number of Registrable Shares requested to be included (including requests pursuant to Section 5.2(a)) that, in the opinion of such underwriters, can be sold, pro rata among the respective Investors, on the basis of the number of Registrable Shares owned by such Investors so requested to be included.
(d) The Company may at its option postpone for up to 90 days the filing or the date effectiveness of a registration statement for a Demand Registration if the Company delivers to the Investors that is 180 days after have requested such Demand Registration a certificate executed by an executive officer of the effective date Company to the effect that in the reasonable judgment of the Company such Registration Statement. Notwithstanding Demand Registration, if effected, could materially interfere with or materially adversely affect any then existing negotiations for financing or any other agreement, arrangement, event, plan or transaction then intended, pending or being negotiated in good faith (an "Adverse Event").
(e) Independent of and without limiting the foregoingCompany's rights under Section 5.1(d), the Company may delay at its option also prohibit, for up to 60 days, the use of a registration statement for a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay upon a certificate executed by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors an executive officer of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant effect that such prohibition is required to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofprevent an Adverse Event.
Appears in 1 contract
Demand Registrations. Apollo may(a) Subject to Section 2.1(b) below, at any time during and from time to time on or after the Term earlier of this Agreement(i) the second anniversary of the effective date of the Merger or (ii) any sale by the Company of any shares of Stock for its own account under the Securities Act pursuant to an effective registration statement on Form S-1 (or an equivalent general registration form then in effect), by written notice (a “Demand Notice”) delivered any Holder or Holders owning, individually or in the aggregate, at least the Requisite Share Number shall have the right to the Company, require the Company to register file a registration statement under the Securities Act (a “Demand Registration”) covering all or part of such Holder or Holders’ Registrable Securities by delivering a written request therefor to the Company specifying the number of Registrable Securities to be included in such registration and the intended method of distribution thereof (the “Demand Registration Request”). The Company shall give prompt written notice (the “Notice of Demand Request”) of such Demand Registration Request to all Holders who hold of record any Registrable Securities and, thereupon, the Company shall, subject to Sections 2.3 and 2.6, as expeditiously as possible, use its best efforts to effect the registration under the Securities Act of (i) the Registrable Common Stock on behalf of Apollo and any of its Affiliates Securities which hold Registrable Common Stock. Requests from Apollo the Company has been so requested to include shares register in a Piggyback Registration shall not constitute a the Demand Registration Request, for purposes disposition in accordance with the intended method of this Section 2. All requests disposition stated in the Demand Registration Request and (ii) all other Registrable Securities the Holders’ of which shall have made a written request to the Company for registration thereof (A) within 30 days after the giving of the Notice of Demand Registrations made Request in the case of the first request pursuant to this Section 2 shall specify 2.1(a) and (B) within 15 days after the number giving of shares the Notice of Demand Request in the case of any subsequent request pursuant to this Section 2.1(a), all to the extent necessary to permit the sale or other disposition by the Holders (in accordance with the intended method of distribution) of Registrable Common Stock Securities to be registered and so registered; provided, however, that no Holder who is a Management Investor shall be entitled to request the intended methods registration of disposition thereof. Notwithstanding anything any of his Registrable Securities pursuant to this Section 2.1(a) until on or after the second anniversary of the effective date of the Merger.
(b) The demand registration rights granted to the contrary Holders in Section 2.1(a) are subject to the foregoing:
following limitations: (i) except as provided in Section 2.6, the Company shall not be required to effect more than two Demand Registrations during the term of four effective registrations under this Agreement;
Section 2.1; (ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another cause a registration pursuant to Section 2.1(a) to be declared effective within a period of six months after the effective date of any other registration statement of the Company effected under this Section 2.1; (iii) if the Board of Directors of the Company, in its good faith judgment, determines that any registration of Registrable Securities should not be made or continued due to a valid need not to disclose confidential information or because it would materially interfere with any material financing, acquisition, corporate reorganization or merger or other transaction involving the Company or HCA (collectively, a Valid Business Reason”), the Company may postpone filing a registration statement relating to a Demand Registration Statement Request until such Valid Business Reason no longer exists, but in no event for more than four months, and, in case any such registration statement has been filed, if the Valid Business Reason has not resulted from actions taken by the Company, the Company may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement; and the Company shall 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; (iv) the offering of Registrable Securities requested to be registered pursuant to this Section 2 until 180 days have elapsed from 2.1 shall be pursuant to a firm commitment underwritten offering unless the date on which the Company has previously sold Registrable Securities pursuant to a registration statement filed with under the SEC pursuant to such Effected Demand Registration was declared effective by the SECSecurities Act; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, and (v) the Company shall not be required to file another Registration Statement effect any registration pursuant to this Section 2 until 180 days 2.1 unless (x) the Registrable Securities proposed to be registered by the Holder or Holders making such request constitute more than 30,000 Registrable Securities (other than any registration effected under the Securities Act on Form S-3 or any similar short-form registration statement where the securities proposed to be registered are expected to have elapsed an aggregate offering price of at least $10,000,000) and (y) the managing underwriter for such registration, if any, shall agree to use its best efforts to ensure that the shares of Registrable Securities sold in an underwritten offering shall be widely disseminated. If the Company shall give any notices of postponement or withdrawal of any registration statement, the Company shall not, during the period of postponement or withdrawal, register any Stock, other than pursuant to a registration statement on Form S-4 (or an equivalent registration form then in effect). Each Holder of Registrable Securities agrees that, upon receipt of any notice from the earlier Company that the Company has determined to withdraw any registration statement pursuant to clause (iii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement and, if so directed by the Company, will deliver to the Company (Aat the Company’s expense) all copies, other than permanent file copies, then in such Holder’s possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice. If the Company shall give any notice of withdrawal of a registration statement, the Company shall, at such time as the Valid Business Reason that caused such withdrawal no longer exists (but in no event later than four months after the date of the completion withdrawal), file a new registration statement covering the Registrable Securities that were covered by the withdrawn registration statement (unless, as a result of Holders having withdrawn any Demand Registration Request, Holders owning fewer than the sale Requisite Share Number are requesting registration of all Registrable Common Stock Securities or such Holders who have not withdrawn their request to have Registrable Securities registered are requesting registration of fewer than 30,000 Registrable Securities), and such registration statement shall be maintained effective for the full period of time required by this Agreement for registration statements effected pursuant to such Effected Demand Registration Section 2.1 and (B) the date of expiration shall not be withdrawn or withdrawal of such Registration Statement for such Effected Demand Registration;
postponed pursuant to clause (iii) each Demand Registration above. If the Company shall be for at least one million shares of Registrable Common Stock; and
have withdrawn or prematurely terminated a registration statement filed under Section 2.1(a) (iv) if Apollo has exercised Piggy-Back Registration rights whether pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares clause (iii) above or as a result of Registrable Common Stock are included on any stop order or other order or requirement of the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SECCommission or any other governmental agency or court), the Company shall not be obligated considered to file have effected an effective registration for the purposes of this Section 2.1(b) until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of postponement of a registration statement, the Company shall, at such time as the Valid Business Reason that caused such postponement no longer exists (but in no event later than four months after the date of the postponement), use its best efforts to effect the registration under the Securities Act of Registrable Securities in accordance with this Section 2.1, unless, as a result of Holders having withdrawn any Demand Registration Statement before Request, Holders owning fewer than the earlier Requisite Share Number are requesting registration of Registrable Securities or Holders who have not withdrawn their request to have Registrable Securities registered are requesting registration of fewer than 30,000 Registrable Securities, and such registration shall not be withdrawn or postponed pursuant to clause (iii) above.
(c) The Company may elect to include in any registration statement and offering made pursuant to this Section 2.1, authorized but unissued shares of Stock or shares of Stock held by the Company as treasury shares; provided, that such inclusion shall be permitted only to the extent that it is pursuant to and subject to the terms of the date on which the lock-up agreementunderwriting agreement or arrangements, if any, that Apollo has entered into with respect by the Holders exercising the demand registration rights granted to the Holders under this Section 2.1. If the Company elects to include shares of Stock in any registration statement and offering pursuant to this Section 2.1 and any such Registration Statement expires, or shares would be excluded from such offering as a result of the date that is 180 days after the effective date proration provisions of such Registration Statement. Notwithstanding the foregoingSection 2.3(a), the Company may delay a Demand Registration for elect to cause such registration statement to be filed under Section 2.2, in which case all the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice provisions of Section 2.2 shall apply to such delay by written notice registration and such registration shall not be deemed to Apollo stating the reason for and the extent be an exercise of any such delay, if the Board of Directors one of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this demand registration rights under Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereof2.1.
Appears in 1 contract
Sources: Registration Rights Agreement (Marietta Surgical Center, Inc.)
Demand Registrations. Apollo may(a) Subject to the terms and conditions hereof, at (x) solely during any time during period that the Term Company is then ineligible under Applicable Law to register Registrable Securities on Form S-3, or if the Company is so eligible but has failed to comply with its obligations under Section 4.3 or (y) following the expiration of this Agreementthe Company’s obligation to keep the Shelf Registration Statement continuously effective pursuant to Section 4.3(c), by 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 notice requests of the Company (each, a “Demand NoticeDemand”) delivered to the Company, require the Company to register for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders that equals or is greater than the Registrable Amount (a “Demand Registration” and such registration statement, a “Demand Registration Statement”). Thereupon, the Company shall, subject to the terms of this Agreement, use its commercially reasonable efforts to effect the registration as promptly as practicable (but no later than forty-five (45) all or part days after receipt of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify Demand) under the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoingSecurities Act of:
(i) the Registrable Securities which the Company shall not be required has been so requested to effect more than two Demand Registrations during register by the term Requesting Shareholders for disposition in accordance with the intended method of this Agreementdisposition stated in such Demand;
(ii) if all other Registrable Securities which the Company has previously effected an Effected Demand Registration been requested to register pursuant to Section 4.1(b), but subject to Section 4.1(g); and
(iii) all shares of Company Common Stock which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 24.1, but subject to Section 4.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and 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 not be 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 file another Registration Statement pursuant to Section 4.1(g). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected 4.1(b).
(c) A Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required deemed to file another have been effected (i) unless the Demand Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier with respect thereto has become effective and has remained effective for a period of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares 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 Common Stock; andSecurities refrain from selling any securities included in such registration statement at the request of the Company or the lead managing underwriter(s) pursuant to the provisions of this Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to one hundred five (105) days after effectiveness, to any stop order, injunction or other order or requirement of the Commission or other Governmental Authority, other than by reason of any act or omission by the applicable Selling Shareholders.
(ivd) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares Demand Registrations shall be on such appropriate registration form of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective Commission as shall be selected by the SEC, Company and reasonably acceptable to the Requesting Shareholders.
(e) The Company shall not be obligated to file (i) subject to Section 4.1(c), maintain the effectiveness of a Demand Registration Statement before registration statement under the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect Securities Act filed pursuant to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for a period longer than one hundred five (105) days or (ii) effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Demand Shareholders were offered “piggyback” rights pursuant to Section 4.2 (subject to Section 4.2(b)) and at least fifty percent (50%) of the Permitted Delay Period number of Registrable Securities requested by such Demand Shareholders to be included in such Demand Registration were included, (as defined belowB) from within ninety (90) days of the date completion of any other Demand Registration (including, for the avoidance of doubt, any Underwritten Offering pursuant to any Shelf Registration Statement) or (C) if, in the Company’s good faith determination, it is not feasible for the Company first gives Apollo notice to proceed with the Demand Registration because of such delay by written notice to Apollo stating the reason for and the extent unavailability of any such delay, if the Board of Directors audited or other required financial statements of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 daysany other Person; provided, however, in no event shall that the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the use its commercially reasonable efforts to obtain such financial statements as promptly as practicable.
(f) The Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by shall be entitled to (i) postpone (upon written notice to the Demand Shareholders) the filing or the effectiveness of a registration statement for any Demand Registration, (ii) cause any Demand Registration Statement to be withdrawn and its effectiveness terminated and (iii) suspend the use of the prospectus forming the part of any registration statement, in each case in the event of a Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period under clause (ii) of the definition thereof, the Company 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 Company, the conditions described in clause (ii) of the definition of Blackout Period are met. If Apollo withdraws its Such certificate shall contain an approximation of the anticipated delay. Upon notice by the Company to the Demand Notice Shareholders of any such determination, each Demand Shareholder covenants that, subject to Applicable Law, it shall keep the fact of any such notice strictly confidential, and, in the case of a Blackout Period pursuant to this Section 2(aclause (ii)(y) during of the pendency 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 delaynotice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration Statement, each prospectus included therein, and any amendment or supplement thereto by it and any of its Affiliates for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall not constitute be earlier terminated in writing by the Company) and, if so directed in writing by the Company, will deliver to the Company any copies then in the Demand Shareholder’s possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice.
(g) If, in connection with a Demand Registration under this Agreement and shall not reduce that involves an Underwritten Offering, the number lead managing underwriter(s) advise(s) the Company that, in its (their) good faith opinion, the inclusion of Demand Registrations to which Apollo is otherwise entitled and, none all of the costs and expenses incurred by Apollo or the Company securities sought to be registered in connection with such withdrawn Demand Registration would adversely affect the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Demand Shareholders, which, in the opinion of the lead managing underwriter(s), can be sold without adversely affecting the success thereof, pro rata among such Demand Shareholders on the basis of the number of such Registrable Securities requested to be included by such Demand Shareholders; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or 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 considered Expenses for reasonably acceptable to the purpose of calculating Excess Expenses pursuant Company (such acceptance not to Section 7 hereofbe unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Sources: Stockholders Agreement (Air Transport Services Group, Inc.)
Demand Registrations. Apollo may, at any time during the Term of this Agreement, by written notice (a “Demand Notice”a) delivered Subject to the Company, require paragraph (b) hereof,
(i) if the Company shall receive, prior to register under the Securities Act its initial Public Offering, a written request (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations specifying that it is being made pursuant to this Section 2 3.2) from both a majority in interest of the ▇▇▇ Investors, or transferees thereof who have become parties to this Agreement, and a majority in interest of the ▇▇▇▇ Investors, or transferees thereof who become parties to this Agreement, that the Company file a registration statement under the 1933 Act, then the Company shall specify (i) promptly (at least thirty (30) days prior to the number filing date) give written notice to all other Holders of shares such request, (ii) with reasonable promptness, and in any case not later than ninety (90) days after receipt by the Company of such written request for a demand registration, file a registration statement with the SEC relating to such Registrable Common Stock Securities as to which such request for a demand registration relates and (iii) use its commercially reasonable efforts to cause to be registered and under the intended methods 1933 Act all Registrable Securities of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company shall not same class that Holders have requested be required to effect more than two Demand Registrations during the term of this Agreement;registered.
(ii) if the Company has previously effected an Effected Demand Registration shall receive, following its initial Public Offering, a written request (specifying that it is being made pursuant to this Section 23.2) from a majority in interest of either the ▇▇▇ Investors, or transferees thereof who have become parties to this Agreement, or the ▇▇▇▇ Investors, or transferees thereof who have become parties to this Agreement (in either case, the Holders delivering such request are referred to herein collectively as the "Requesting Holders") that the Company file a registration ------------------ statement under the 1933 Act, covering the registration of Registrable Securities with an anticipated gross proceeds of at least $50 million (including anticipated gross proceeds, if any, to the Company and any other Holders), then the Company shall (i) promptly (at least thirty (30) days prior to the filing date) give written notice to all other Holders of such request, (ii) with reasonable promptness, and in any case not later than ninety (90) days after receipt by the Company of such written request for a demand registration, file a registration statement with the SEC relating to such Registrable Securities as to which such request for a demand registration relates and (iii) use its commercially reasonable efforts to cause to be required registered under the 1933 Act all Registrable Securities of the same class that Holders have requested be registered.
(b) If the total amount of Registrable Securities that all Holders request to file another Registration Statement be included in an offering exceeds the 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, selected pro --- rata based on the number of Registrable Securities which each of the Holders ---- requesting to be included owns, or has the right to acquire pursuant to the exercise of Vested Stock Options.
(c) At any time following the Company's initial Public Offering, Requesting Holders shall be entitled to request, and the Company shall be obligated to effect, as many registrations of Registrable Securities pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective 3.2 as may be requested by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration Requesting Holders until such time as requested by Apollo, the Company they shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all no longer own any Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofSecurities.
Appears in 1 contract
Demand Registrations. Apollo may, at any time during the Term of this Agreement, by written notice (a “Demand Notice”a) delivered to the Company, require the Company to register The Holders may request registration under the Securities Act of 1933, as amended (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares "Securities Act"), of Registrable Common Stock to be registered and the intended methods Shares for sale in an underwritten public offering of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company shall not be required to effect more no fewer than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC2,500,000 Registrable Shares; provided, thathowever, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, that the Company shall not be obligated to file a register Registrable Shares pursuant to this Section 1 on more than one occasion. The registration requested pursuant to this Section 1 shall be referred to herein as the "Demand Registration".
(b) A registration will not count as the Demand Registration Statement before the earlier for purposes of the date on which proviso to Section 1 unless it has become effective (but if a registration statement is filed and the lock-up agreement, if anyHolders thereafter request for any reason that the Company not cause the registration statement to become effective, that Apollo has entered into with respect to such registration shall nevertheless count as the Demand Registration).
(c) The Holders may request their Demand Registration Statement expires, or at any time after 270 days after the date that is hereof, except during the pendency of an offering by the Company in which Holders are offered to participate under Section 2 hereof, then at any time 180 days after the date of the final prospectus for such offering.
(d) The Holders may designate one joint book-running managing underwriter of nationally recognized standing for such offering, subject to the approval of the Company which shall not be unreasonably withheld or delayed, and the Company may designate one joint book-running managing underwriter.
(e) If at the time of any request to register Registrable Shares pursuant to this Section 1, the Company is engaged or intends to engage within 90 days of the time of the request in a registered public offering as to which the Holders may include Registrable Shares pursuant to Section 2 or is engaged in any other activity which, in the good faith determination of the Company's Board of Directors, would be adversely affected by the requested registration, then the Company may at its sole discretion direct that such request be delayed for a period not in excess of 120 days from the effective date of such offering or the date of such request in the case of any other activity, as the case may be, such right to delay a request to be exercised by the Company not more than once in any twelve-month period.
(f) The Company shall not include in any Demand Registration Statementany securities which are not Registrable Shares of the Holders without the prior written consent of the Attorney in Fact.
(g) The rights of the Holders pursuant to this Section 1 shall expire on the third anniversary of the date hereof. Notwithstanding the foregoing, in the event that the Company may delay a Demand Registration for the Permitted Delay Period (as defined belowexercises any of its rights pursuant to Section 1(e) from hereof, the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) expiration shall be a period of extended for as many days of up to 90 days; provided, however, in no event shall the Company delay as any Demand Registration for is delayed as a longer period than result. In the Board of Directors determines in good faith is necessary under the existing circumstances; provided further event that in no event shall the Company delay a Demand Registration exercises its rights pursuant to Section 1(e) more than once. If , the expiration shall be extended for a number of days equal to the aggregate number of days that the Company delays the all Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofRegistrations.
Appears in 1 contract
Sources: Registration Rights Agreement (Gaylord Entertainment Co /De)
Demand Registrations. Apollo may, at (a) At any time and from time to time during the Term Effective Period, a Holder or group of Holders that Beneficially Owns a number of shares of Common Stock representing not less than ten percent (10%) of the Common Stock shall have the right by delivering a written notice to the Company (a "Demand Notice") to require the Company to, pursuant to the terms of this Agreement, register under and in accordance with the provisions of the Securities Act the number of Registrable Securities Beneficially Owned by Holders and requested by such Demand Notice to be so registered (a "Demand Registration"). A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. As promptly as practicable, but no later than seven (7) Business Days after receipt of a Demand Notice, the Company shall give written notice of such Demand Notice to all Holders of record of Registrable Securities.
(b) Following receipt of a “Demand Notice”, the Company shall use its commercially reasonable efforts to file, as promptly as reasonably practicable, but not later than 30 days after receipt by the Company of such Demand Notice, a Registration Statement (including, without limitation, on Form S-1, Form ▇-▇, ▇▇▇▇ ▇-▇ or Form F-3 (or any comparable or successor form or forms or any similar long-form or short-form registration) delivered 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 registers or is capable of registering without a post-effective amendment all the Registrable Securities requested to be registered) relating to the Company, require offer and sale of the Registrable Securities requested to be included therein by the initial requesting Holder and any other Holder of Registrable Securities that shall have made a written request to the Company for inclusion in such registration (which request shall specify the maximum number of Registrable Securities intended to register be disposed of by such Holder) within 20 days after the receipt of the Demand Notice, in accordance with the method or methods of disposition of the applicable Registrable Securities elected by such Holders, and the Company shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective under the Securities Act (a “Demand Registration”) all or part of as promptly as practicable after the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition filing thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2contained herein, the Company shall not be required to file another Registration Statement a registration statement unless the required financial statements are available.
(c) If any of the Registrable Securities registered pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering 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, and such number of Registrable Securities shall be allocated for inclusion as follows: (i), first, the Registrable Securities for which inclusion in such demand offering was declared effective requested by the SEC; providedInvestor and (ii) second, thatthe Registrable Securities for which inclusion in such demand offering was requested by the other Holders (collectively, the "Requested Registrable Securities"), in each case, pro rata (if applicable), based on the previous Effected number of Registrable Securities Beneficially Owned by the Investor and each such Holder.
(d) The Holders collectively shall be entitled to request no more than four (4) Demand Registrations on the Company, except that if Holders other than the Investor request Demand Registrations that the Investor does not participate in, the Investor shall be entitled to a request an additional Demand Registration was effected by and in no event shall the Company be required to effect more than one Demand Registration in any six month period.
(e) In the event of a “shelf” registration as requested by ApolloDemand Registration, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from maintain the earlier of (A) the date continuous effectiveness of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such applicable Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for a period of at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 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, except that if the Company is requested to file a shelf registration pursuant to Rule 415 of the Securities Act it shall be required to maintain the continuous effectiveness of such Registration Statement. Notwithstanding Statement until all Registrable Securities initially covered thereby are no longer Registrable Securities.
(f) Within sixty (60) days of becoming eligible to file a Form S-3 or Form F-3 or any comparable or successor form or forms or any similar short-form registration (including pursuant to Rule 415 under the foregoingSecurities Act) ("Short-Form Registration"), the Company may delay shall file a Demand Registration shelf registration statement on such form providing for the Permitted Delay Period (as defined below) from registration of, and the date sale on a continuous or delayed basis of all of the Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Registrable Securities. Upon filing a Short Form Registration, through the end of the Effective Period, the Company first gives Apollo notice of will use its commercially reasonable efforts to keep such delay by written notice Short-Form Registration effective with the SEC at all times and to Apollo stating refile such Short-Form Registration upon its expiration (if such expiration occurs prior to the reason for and the extent of any such delay, if the Board of Directors end of the Company determines Effective Period), and to cooperate in good faith that proceeding with any shelf take down by amending or supplementing the proposed offering would have a material adverse effect on prospectus statement related to such Short-Form Registration as may reasonably be requested by the Company, Holders or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is as otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofrequired.
Appears in 1 contract
Sources: Investor Rights Agreement (Aegean Marine Petroleum Network Inc.)
Demand Registrations. Apollo may, at At any time during after the Term expiration of this Agreementthe periods set forth in the lock-up agreements executed in connection with the Underwriting Agreement (or earlier waiver of, by written notice or release from such periods), either the Welsh Majority or the Vestar Majority (a “Demand Notice”the "Requesting Party") delivered to the Company, require may request the Company to register effect the registration under the Securities Act (a “Demand Registration”) of all or part any portion of the Registrable Common Stock Securities held by such Requesting Party on behalf of Apollo and Form S-1 or any of its Affiliates which hold Registrable Common Stock. Requests from Apollo similar long-form registration ("Long-Form Registrations"), or, if available, on Form S-3 or any similar short-form registration ("Short-Form Registrations"), for sale in the manner specified in such notice; provided that the Company shall have no obligation to include shares in effect a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made registration pursuant to this Section 2 shall specify 4(a) unless the number amount of shares of the Registrable Common Stock Securities requested to be registered and included in such offering would result in initial aggregate proceeds (determined at the intended methods time of disposition thereof. Notwithstanding anything to the contrary initial filing of the registration statement relating thereto) in the foregoing:
excess of (i) in the Company shall not be required to effect more than two Demand Registrations during the term case of this Agreement;
a Long-Form Registration statement, $25 million and (ii) in the case of a Short-Form Registration, $10 million (each of clause (i) and (ii) above, a "Threshold Amount"); provided further, that the Requesting Party may make a demand registration pursuant to this Section 4(a) if such demand registration is for the remaining Registrable Securities of such Requesting Party, even if such offering would result in initial aggregate proceeds (determined at the time of the initial filing of the registration statement relating thereto) of less than the applicable Threshold Amount. Each of the Welsh Majority and the Vestar Majority shall be entitled to request an unlimited number of Short-Form Registrations (to the extent the Company has previously effected an Effected Demand is permitted to use Short-Form Registrations) and the Welsh Majority shall be entitled to request up to two (2) Long-Form Registrations and the Vestar Majority shall be entitled to request one (1) Long-Form Registration pursuant to this Section 2, 4(a); provided that the Company Company's obligation with respect to any such Long-Form Registration shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed deemed satisfied only when a registration statement covering the Registrable Securities specified in the notice received from the date on which Requesting Party for sale in accordance with the method of disposition specified by the Requesting Party shall have become effective and, if such method of disposition is a firm commitment underwritten public offering, at least 75% such Registrable Securities of the Requesting Party specified in such notice shall have been sold pursuant thereto, unless the reason the registration statement filed with the SEC pursuant fails to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expiresbecome effective, or the date that effectiveness is 180 days after not maintained, is due to the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors fault of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstancesRequesting Party; provided further that in no event shall the Company delay a Demand Registration more than once. If case that the Company delays registration statement fails to become effective, or the Demand Registrationeffectiveness is not maintained, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice due to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none fault of the costs Requesting Party, and such Requesting Party agrees to pay all expenses incurred by Apollo it or the Company in connection with such withdrawn Demand registration, such registration shall not count against the number of Long-Form Registrations to which the Requesting Party is entitled. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 4(a) (A) with respect to a Long-Form Registration, within 180 days after the effective date of a Long-Form Registration filed by the Company or (B) with respect to a Short-Form Registration, within 90 days after the effective date of a Short-Form Registration filed by the Company, provided that in either case a request may be made before the end of such 90 or 180 day period, as applicable, in connection with a firm commitment underwritten public offering in which the Investors shall be considered Expenses for the purpose of calculating Excess Expenses have been entitled to join pursuant to this Section 7 hereof4 or Section 5 hereof and in which there shall have been effectively registered not less than 75% of the Registrable Securities as to which registration shall have been so requested by the Investors.
Appears in 1 contract
Sources: Securityholders Agreement (Valor Communications Group Inc)
Demand Registrations. Apollo may, at any time during (a) The Investors may request the Term Parent to use commercially reasonable efforts to effect a Registration of this Agreement, by written notice (a “Demand Notice”) delivered to the Company, require the Company to register under the Securities Act (a “Demand Registration”) all or part of their Registrable Shares (such Registration being hereinafter referred to as a "Demand Registration") by filing a registration statement under the U.S. Securities Act and a prospectus under Canadian Securities Acts (including, if eligible, a shelf registration statement under Rule 415 of the U.S. Securities Act and a shelf prospectus under National Instrument 44-102 – Shelf Distributions). Any such request shall be made by notice in writing (a "Demand Registration Request") to the Parent. The Parent shall as soon as practical, and in any event within 60 days, in the case of a registration statement to be filed on Form S-1, and 30 days, in the case of a registration statement to be filed on Form S-3, of receipt of a Demand Registration Request, file a registration statement covering all of the Registrable Common Stock Securities that the Investors requested to be registered and use its commercially reasonable efforts to cause such registration statement to become effective as soon as practicable.
(b) The Parent shall not 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 registration statement has been declared effective by the SEC and the applicable final prospectus has been receipted by the relevant Canadian Securities Commission);
(ii) a Demand Registration in the event the Parent determines in good faith that either (A) the effect of the filing of a prospectus or registration statement could impede the ability of the Parent to consummate a significant transaction (including, without limitation, 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 Parent or its subsidiaries the disclosure of which the Parent believes would be materially adverse to the Parent and its subsidiaries, taken as a whole; in which case the Parent's obligations under this Section 5.1 shall be deferred for a period of not more than 90 days from the date of receipt of the Demand Registration Request of the Investors, provided that the Parent shall not be permitted to defer the filing of a prospectus under this Section 5.1 more than two times in any 12-month period;
(iii) a Demand Registration in respect of a number of Registrable Shares that is expected to result in gross proceeds of less than $20 million; or
(iv) a Demand Registration before the 90th day following the date on behalf which (A) a receipt was issued to the Parent with respect to any final prospectus filed by the Parent or (B) a registration statement filed by the Parent became effective.
(c) The Investors may request the Parent to use commercially reasonable efforts to effect a shelf registration statement or file and obtain a receipt for a shelf prospectus, which registration statement or prospectus contemplates sales or distributions of Apollo and Registrable Shares, provided that any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration such request shall not constitute a Demand Registration, unless accompanied by a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:Request.
(id) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed The lead underwriter or underwriters for any offering in connection with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; andselected by the Investors and shall be reasonably acceptable to the Parent.
(ive) if Apollo has exercised Piggy-Back Registration rights The Parent shall be entitled to include for sale in any prospectus or registration statement filed pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier any securities of the date on which Parent to be sold by the lock-up agreement, if any, Parent for its own account unless the underwriters advise the Parent that Apollo has entered into with respect the aggregate amount of securities requested to be included in such Registration Statement expires, or the date that offering is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice sufficiently large to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, distribution or during the pendency of a transaction that the Board of Directors sales price of the Company determines Registrable Shares in good faith is material to such offering in which case the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, Parent will include in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the such Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none extent of the costs amount that the underwriter believes may be sold without causing such material adverse effect, first the Registrable Shares requested to be included by the Investors and expenses incurred second, securities offered by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses Parent for the purpose of calculating Excess Expenses pursuant to Section 7 hereofits own account.
Appears in 1 contract
Demand Registrations. Apollo may, at (a) At any time during the Term of this Agreement, by written notice (a “Demand Notice”) delivered to after the Company's first Public Offering, require any Stockholder may request in writing that the Company to register effect the registration under the Securities Act (a “Demand Registration”) of all or part of its Registrable Securities, specifying in the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify request the number of shares and types of Registrable Common Stock Securities to be registered by each such holder and the intended methods method of disposition thereofthereof (such notice is hereinafter referred to as a "Holder Request"). Notwithstanding anything Upon receipt of such Holder Request, the Company will promptly give written notice of such requested registration to all other holders of Registrable Securities, which other holders shall have the right, subject to the contrary provisions of Section 6.1(h) hereof, to include the Registrable Securities held by them in such registration and thereupon the foregoingCompany will, as expeditiously as possible, use its best efforts to effect the registration under the Securities Act of:
(i) the Registrable Securities which the Company shall not be required has been so requested to effect more than two Demand Registrations during register pursuant to the term of this Agreement;Holder's Request; and
(ii) if all other Registrable Securities which the Company has previously effected an Effected Demand Registration been requested to register by any other holder thereof by written request given to the Company within 30 calendar days after the giving of such written notice by the Company, all to the extent necessary to permit the disposition of the Registrable Securities so to be registered pursuant to this Section 2an Underwritten Offering; provided, however, that the Company shall not be required obligated to file another Registration Statement a registration statement pursuant to any Holder Request under this Section 6.1 (a):
(1) Unless the Company shall have received requests for such registration with respect to at least 10% of the Fully Diluted Common Stock;
(2) Other than a registration statement on Form S-3 or a similar short form registration statement, within a period of 12 months after the effective date of any other registration statement relating to any registration request under this Section 6.1 (a) that was not effected on Form S-3 (or any similar short form); or
(3) Within the six month period immediately following the effective date of a registration previously effected by the Company pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;6.1.
(iiib) each Demand Registration shall be for at least one million shares Notwithstanding the foregoing provisions of Registrable Common Stock; and
Section 6.1 (iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SECa), the Company shall not be obligated to file more than two registration statements pursuant to this Section 6.1.
(c) If the Company proposes to effect a Demand Registration Statement before registration requested pursuant to this Section 6.1 by the earlier filing of the date a registration statement on which the lockForm S-3 (or any similar short-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoingform registration statement), the Company may delay a Demand Registration for will comply with any request by the Permitted Delay Period (as defined below) from the date managing underwriter to effect such registration on another permitted form if such managing underwriter advises the Company first gives Apollo notice that, in its opinion, the use of another form of registration statement is of material importance to the success of such delay by written notice proposed offering.
(d) A registration requested pursuant to Apollo stating the reason for and the extent of any such delaySection 6.1 (a) will not be deemed to have been effected unless it has become effective; provided, that, if after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court, such registration will be deemed not to have been effected.
(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 6.1.
(f) The Board of Directors of the Company determines in good faith shall have the right to select the investment banker (or investment bankers) that proceeding with shall manage the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein(collectively, the “Permitted Delay Period” "managing underwriter").
(g) Whenever a requested registration pursuant to this Section 2(a6.1 involves a firm commitment underwriting (an "Underwritten Offering"), the only shares that may be included in such Offering are (i) shall be a period Registrable Securities, and (ii) securities of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for which are not Registrable Securities ("Company Securities").
(h) If a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice registration pursuant to this Section 2(a) during 6.1 involves an Underwritten Offering and the pendency of such delaymanaging underwriter shall advise the Company that, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce in its judgment, the number of Demand Registrations shares proposed to which Apollo is otherwise entitled andbe included in such Offering should be limited due to market conditions, none of the costs and expenses incurred by Apollo or then the Company in connection with will promptly so advise each holder of Registrable Securities that has requested registration, and the Company Securities, if any, shall first be excluded from such withdrawn Demand Registration Offering to the extent necessary to meet such limitation; and if further exclusions are necessary to meet such limitation, the shares shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofexcluded pro rata until such limitation has been met.
Appears in 1 contract
Sources: Stockholders' Agreement (Advanced Communications Group Inc/De/)
Demand Registrations. Apollo may, at (a) At any time during and from time to time IBS or any Holder or group of Holders (the Term “Initiating Holders”) may request in writing that the Company register under the Securities Act all or any portion of this Agreementthe Registrable Securities held by such Holders, having an anticipated aggregate offering price of not less than US$5,000,000; provided that no Registration Statement need be filed with the Commission (A) prior to the later of (i) one hundred and eighty days following the pricing of the IPO and (ii) the expiration of any “lock-up agreement” entered into by the Holders of Registrable Securities with an underwriter in connection with the IPO (unless waived by such underwriter), or (B) if the number of Registrable Securities requested to be registered represent an amount that is less than the amounts set forth in Rule 144(e)(1)(i), (ii) or (iii) at the time of such written request. Upon receipt of such written request, which shall specify the intended method of distribution thereof, the Company shall within ten (10) days deliver notice (a the “Demand Notice”) delivered thereof to all Holders (other than the Holders of such request, as applicable), if any, who shall then have twenty (20) days to notify the Company in writing of their desire to be included in such registration. Subject to the Companyprovisions of Section 2.5 below, require the Company will use its reasonable best efforts to register file a Registration Statement for such intended method of distribution, as promptly as practicable, but not later than (x) ninety (90) days after such Demand Notice in the case of a registration with a Long-Form Registration Statement and (y) thirty (30) days after such Demand Notice in the case of a registration with a Short-Form Registration Statement, and in each case 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 (a “Demand Registration”) all or part subject to the proviso of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes first sentence of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. 2.1(a)).
(b) Notwithstanding anything to the contrary in the foregoing:
(i) , the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to registration under this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of 2.1: (Ai) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and before three hundred sixty (B360) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of any Registration Statement filed pursuant to Section 2.1(a) (or the later expiration of any extension of any 180-day “lock-up agreement” entered into by the Company or the Holders of Registrable Securities with any underwriters in connection with such Registration Statement. Notwithstanding Statement in connection with any earnings release or other release of material information pursuant to FINRA Rule 2711(f), to the foregoingextent applicable (unless waived by such underwriters)), (ii) before three hundred sixty (360) days after the effective date of a previously effective Registration Statement for an underwritten offering of securities pursuant to a Company-initiated registration (other than pursuant to a Registration Statement on Form S-4, F-4 or S-8 or in connection with the IPO) or a Piggy-Back Underwritten Offering (as defined below), in each case in which the Holders were able to sell seventy-five percent (75%) of the Registrable Securities they requested to be included in, and did not withdraw from, such registration (or the later expiration of any extension of any 180-day “lock-up agreement” entered into by the Company may delay or the Holders of Registrable Securities with any underwriters in connection with such Registration Statement in connection with any earnings release or other release of material information pursuant to FINRA Rule 2711(f), to the extent applicable (unless waived by such underwriters)), (iii) before ninety (90) days after the effective date of any other previously effective Registration Statement for an underwritten offering of securities pursuant to a Demand Company-initiated registration (other than pursuant to a Registration for the Permitted Delay Period Statement on Form S-4, F-4 or S-8) or a Piggy-Back Underwritten Offering (as defined below) (or the later expiration of any extension of any 90-day “lock-up agreement” entered into by the Company or the Holders of Registrable Securities with any underwriters in connection with such Registration Statement in connection with any earnings release or other release of material information pursuant to FINRA Rule 2711(f), to the extent applicable (unless waived by such underwriters)), (iv) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of a Company-initiated underwritten registration (other than pursuant to a Registration Statement on Form S-4, F-4 or S-8 or in connection with the IPO) or Piggy-Back Underwritten Offering, provided, however, that the Company is actively employing reasonable best efforts to cause such Registration Statement to be filed and to become effective or to cause such Piggy-Back Underwritten Offering to be effected, and provided, further that nothing in this clause (iii) shall derogate from the date Company’s obligations under Section 2.4 hereof. For the Company first gives Apollo notice avoidance of such delay by written notice doubt, subject to Apollo stating the reason for and the extent terms of any “lock-up agreement” entered into with an underwriter (unless waived by such delayunderwriter), if the Board of Directors of the Company determines may elect to effect a registration pursuant to Section 2.1(a) and the other provisions set forth in good faith this Agreement notwithstanding the time periods set forth in this Section 2.1(b) if it determines, in its business judgment, that proceeding with effecting the proposed offering registration at such time would have a material adverse effect on be in the Company, or during the pendency of a transaction that the Board of Directors best interest of the Company determines and its shareholders not participating in good faith is material the registration.
(c) The Company shall be obligated to effect only three (3) registrations on Long-Form Registration Statements for IBS and two (2) registrations on Long-Form Registration Statements for each other Holder. An unlimited number of registrations on Short-Form Registration Statements shall be effected by the Company under this Section 2.1.
(d) A registration shall not be counted as “effected” if (i) after effectiveness, the Registration Statement becomes subject to any stop order, injunction or other order of the Commission or other governmental agency prior to the Company. As used hereinsale of all Registrable Securities to be sold thereunder, (ii) the “Permitted Delay Period” method of disposition is a firm commitment underwritten public offering and, as a result of an exercise of the underwriters’ cutback provisions in Section 2.3(c), less than seventy-five (75%) of the Registrable Securities requested to be included therein, and not withdrawn therefrom, have been sold pursuant to this Section 2(a) shall be a period of days of up to 90 daysthereto; provided, however, that if such registration is the last registration on a Long-Form Registration Statement of the applicable Initiating Holder(s) as described in no event shall Section 2.1(c) hereof, then such percentage such be ninety (90%), or (iii) if the Company delay shall have withdrawn or prematurely terminated a Registration Statement as set forth in Section 2.5.
(e) The Registrable Securities covered by any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary Statement demanded under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency 2.1 shall be distributed by means of such delaya firm commitment underwritten offering unless otherwise agreed to in writing by IBS or, the Demand Registration shall not constitute if IBS is no longer a Demand Registration under this Agreement and shall not reduce the number Holder, by each Holder of Demand Registrations to which Apollo is otherwise entitled and, none a majority of the costs and expenses incurred by Apollo or the Company Registrable Securities to be included in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofStatement.
Appears in 1 contract
Sources: Registration Rights Agreement (Luxoft Holding, Inc)
Demand Registrations. Apollo may, at (i) At any time during after six months after the Term closing of this Agreementthe Company's Initial Public Offering, by if and whenever the Company shall receive a written notice request therefor from an Initial Member (a “"Demand Notice”) delivered to the CompanyRegistration"), require the Company agrees to register prepare and file promptly, but not more than thirty (30) days after such request, a registration statement under the Securities Act covering all, but not less than all, shares of Registrable Securities which are the subject of such request and agrees to use its best efforts to cause such registration statement to become effective as expeditiously as possible and no later than one hundred twenty (a “Demand Registration”120) all or part of days after the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration filing thereof.
(ii) A request and/or registration shall not constitute a Demand Registration until the registration statement has become effective and remains continuously effective for the lesser of (i) the period during which all Registrable Securities registered in the Demand Registration are sold and (ii) one hundred eighty (180) days; provided, however, that a request and/or registration shall not constitute a Demand Registration if (x) after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Company or other holders of the securities and such interference is not thereafter eliminated or (y) the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such Demand Registration are not satisfied or waived. In addition, the applicable Initial Member shall have the right to withdraw any request for a Demand Registration at any time prior to the time that the registration statement in respect of such Demand Registration has become effective (provided that such Demand Registration shall nonetheless be deemed a request for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything paragraph 21(b) unless such withdrawal is based on material adverse information relating to the contrary in Company or its condition, business or prospects that is different from that generally known to the foregoing:
(i) applicable Initial Member at the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date time of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;request).
(iii) each Demand Registration The Company shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights obligated to prepare, file and cause to become effective only two registration statements per Initial Member pursuant to Section 3 hereofthis paragraph 21(b), and in connection therewith at least 1,500,000 shares excluding registration statements on Form S-3 which shall not count for purposes of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the this limitation. The Company shall not be obligated to file effect more than one registration on Form S-3 under this paragraph 21(b) during any twelve-month period.
(iv) If the Initial Member making a Demand Registration Statement before intends to distribute the earlier Registrable Securities covered by their request by means of an underwriting, such Initial Member agrees to provide the Company with the name of the date on which managing underwriter or underwriters (the lock-up agreement, if any, "managing underwriter") that Apollo has entered into with respect it proposes to employ. In such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoingevent, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent right of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material Initial Member to the Company. As used herein, the “Permitted Delay Period” registration pursuant to this Section 2(a) paragraph 21(b), shall be a period conditioned upon such Initial Member's participation in such underwriting and the inclusion of days of up such Initial Member's Registrable Securities in the underwriting to 90 days; provided, howeverthe extent requested and to the extent provided herein. All Initial Members proposing to distribute their Registrable Securities through such underwriting agree to enter into (together with the Company) an underwriting agreement with the underwriter or underwriters selected for such underwriting, in no event shall the manner set forth above, provided that such underwriting agreement is in customary form and is reasonably acceptable to the Company delay any Demand Registration for a longer period than and the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofapplicable Initial Member.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Cablevision Systems Corp /Ny)
Demand Registrations. Apollo may(a) Following the date of the Offering (the "Offering Date"), at for a period of fifteen years (the "Demand Period"), the Holder shall have the right (the "Demand Right") on two occasions (except that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or any time during transferee or assignee to whom the Term rights of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ under this Agreement, by written notice (a “Demand Notice”Agreement are assigned in accordance with the provisions of Section 4.06 hereof shall have the right on one occasion) delivered to the Company, require the Company to register file a registration statement under the Securities Act (a “Demand Registration”) in respect of all or part of the Registrable Common Stock on behalf Shares held by the Holder or a number of Apollo Registrable Shares held by such Holder which is equal to at least five percent of the outstanding Ordinary Shares of the Company or if such Demand Right is the second Demand Right, all the remaining Registrable Shares held by such Holder; PROVIDED, HOWEVER, that each such Demand Right may be exercised only once in any calendar year during the Demand Period any time following the publication of the annual report of the Company but before the annual general meeting of the Company in that year; PROVIDED, HOWEVER, that the first Demand Right may not be exercised before the expiry of the earlier of (i) 12 months from the date hereof and (ii) the time the Company is allowed to register Class A Shares using the short form F-3 Registration Statement pursuant to the Securities Act. As promptly as practicable, but in no event later than 30 days after the Company receives a written request from the 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 declared effective promptly a registration statement (a "Demand Registration") providing for the registration of all Registrable Shares as the Holder shall have demanded be registered.
(b) Anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay, for a reasonable period of time, not to exceed 45 days (the "Blackout Period"), the filing of any Demand Registration if (i) the Company is conducting or about to conduct an underwritten public offering of its Affiliates securities in which hold Registrable Common Stock. Requests from Apollo the Holder is entitled to include shares join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing contractual obligation not to engage in a Piggyback public offering, or (iii) 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; PROVIDED, HOWEVER, that the Blackout Period shall terminate upon the completion or abandonment of the relevant securities offering or sale, the termination or expiration of the existing contractual obligation to its underwriters not to engage in a public offering, the completion or abandonment of the relevant financing, acquisition, corporate reorganization or other similar transaction, such time as such Demand Registration shall no longer affect the relevant pending or contemplated offering or sale of securities by the Company, or the public disclosure by the Company or public admission by the Company of such material nonpublic information or such time as such material nonpublic information shall be publicly disclosed without breach of the last sentence of this subsection (b), or as the case may be. After the expiration of any Blackout Period 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 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 for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce determining the number of Demand Registrations to which Apollo such Holder is otherwise entitled and, none to hereunder.
(c) Any request by a Holder for a Demand Registration which is subsequently withdrawn prior to such Demand Registration becoming effective shall not constitute a Demand Registration for purposes of determining the costs and expenses incurred by Apollo or number of Demand Registrations to which such Holder is entitled if such withdrawal is due to (i) a material adverse change affecting the Company or capital markets generally, (ii) a notification by the Company of an intention to file a registration statement with respect to the Class A Shares or (iii) the circumstances described in connection Section 3.01(b). Other than with respect to a withdrawal which is made as a result of such foregoing events, such Holder shall share equally with the Company all expenses relating to the preparation of such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofRegistration.
Appears in 1 contract
Demand Registrations. Apollo may, at (a) At any time during after the Term earlier of this Agreement, by written notice (a “Demand Notice”i) delivered the second anniversary of the date hereof or (ii) the date that is ninety (90) days after the initial public offering of the Common Stock pursuant to the Company, require the Company to register an effective registration under the Securities Act Act, at least a Two-Thirds Interest may notify the Company in writing (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 request shall specify the number of shares Registrable Securities intended to be disposed of Registrable by such holder and the manner of such disposition) that they intend to offer or cause to be offered for public sale all or any portion of their Common Stock which is Registrable Securities in the manner specified in such request. Upon receipt of such request, the Company shall promptly deliver notice of such request to all Persons holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing of their desire to be registered included in such registration. If the request for registration contemplates an underwritten public offering, the Company shall state such in the written notice and in such event the right of any Person to participate in such registration shall be conditioned upon their participation in such underwritten public offering and the intended methods inclusion of disposition thereof. Notwithstanding anything their Registrable Securities in the underwritten public offering to the contrary extent provided herein. The Company will use, subject to the limits contained in this Section 2 and in Sections 5 and 6, its reasonable best efforts to expeditiously effect the foregoing:
(i) registration of all Registrable Securities whose holders request participation in such registration under the Securities Act and qualify such Registrable Securities for sale under any state blue sky law; provided, however, that the Company shall not be required to effect more than two Demand Registrations during the term of registration pursuant to a request under this Agreement;
(iiSection 2(i) if after the Company has previously effected an Effected Demand Registration caused two (2) such registrations pursuant to this Section 2, to become effective or (ii) within 90 days following the effective date of any registered offering by the Company shall not be required to file another Registration Statement the general public of its securities for its own account. The Company may postpone the filing or the effectiveness of any registration statement pursuant to this Section 2 until 180 for a reasonable time period, provided that such postponements shall not exceed ninety (90) days have elapsed from in the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, thataggregate during any twelve (12) month period, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, (i) the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier has been advised by legal counsel that such filing or effectiveness would require disclosure of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration a material financing, acquisition or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereofother corporate transaction, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with such disclosure is not in the proposed offering would have a material adverse effect on best interests of the Company, Company and its stockholders or during the pendency of a transaction that (ii) the Board of Directors of the Company determines in good faith that there is material to the Companya valid business purpose or reason for delaying filing or effectiveness. As used herein, the “Permitted Delay Period” pursuant to A registration will not count as a requested registration under this Section 2(a) shall be a period of days of up until the registration statement relating to 90 dayssuch registration has been declared effective by the Commission; provided, however, that if a Two Thirds Interest shall request, in no event shall writing, that the Company either withdraw a registration statement which has been filed under this Section 2(a) but not yet been declared effective or delay any Demand the effectiveness of such a registration statement for up to four (4) months, a Two Thirds Interest may thereafter request the Company to reinstate such Registration for Statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein, provided that the Company shall only be required to refile a longer period than registration statement once with respect to each such registration statement filed under this Section 2(a).
(b) If a requested registration involves an underwritten public offering and the Board managing underwriter of Directors such offering determines in good faith is necessary under that the existing circumstances; number of securities sought to be offered should be limited due to market conditions (including interference with successful marketing of securities of the Company), 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 further that in no event shall the Company delay shall be entitled to participate and the 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) having a Demand Registration more 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 other than onceInvestors 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) and any other Investors that have elected to be included in such registration, 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 Company delays number of Registrable Securities pursuant to clauses (i), (iii) or (iv), such reduction shall be made on a pro rata basis within such tranche (based upon the Demand Registrationaggregate 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) which is for an underwritten public offering, Apollo may withdraw its Demand Notice during the pendency of managing underwriter shall be chosen by the Investors holding not less than Two-Thirds Interest to be sold in such delay by written notice offering, subject to the Company's consent, which such consent shall not be unreasonably withheld. If Apollo withdraws The Company may not cause any other registration of securities for sale for its Demand Notice 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 (180) days following the effective date of any registration required pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereof2.
Appears in 1 contract
Sources: Registration Rights Agreement (Private Business Inc)
Demand Registrations. Apollo may, at any time during the Term of this Agreement, by written notice (a “Demand Notice”a) delivered to the Company, require If the Company to register under the Securities Act shall receive a written request (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations specifying that it is being made pursuant to this Section 2 shall specify 3.2) from the number ▇▇▇ Group Shareholders, made at a time when the ▇▇▇ Group Shareholders and their Permitted Transferees own in the aggregate at least 10% of shares of Registrable Common the Purchased Shares (as that term is defined in the Stock Purchase and Redemption Agreement), that the Company file a registration statement under the 1933 Act, or a similar document pursuant to be registered and the intended methods of disposition thereof. Notwithstanding anything any other statute then in effect corresponding to the contrary in 1933 Act, covering the foregoing:
(i) regis- tration of Common Stock, then the Company shall shall, not be required to effect more later than two Demand Registrations during the term of this Agreement;
ninety (ii90) if days after receipt by the Company has previously effected an Effected Demand Registration of a written request for a demand registration pursuant to this Section 23.2, file a registration statement with the Securities and Exchange Commission (the "SEC") relating to such Registrable Securities as to which such request for a demand registration relates (the "Requested Shares"), and the Company shall not use its best efforts to cause the offering of such Requested Shares to be required registered under the 1933 Act. The Company shall be obligated to file another Registration Statement effect only three (3) registrations of Registrable Securities pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days3.2; provided, however, in no event shall that if the ▇▇▇ Group Shareholders and their Permitted Transferees own at least 10%, but not more than 25%, of the Purchased Shares, then the Company delay any Demand Registration for a longer period than shall be obligated to effect only one (1) such registration of Registrable Securities.
(b) If, pursuant to Section 3.3, the Board total amount of Directors determines securities that all Holders and all other holders of securities which have applicable registration rights request to be included in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice an offering made pursuant to this Section 2(a) during 3.2 exceeds the pendency amount of securities that the underwriters reasonably believe compatible with the success of the offering, then the Company will include in such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce registration only the number of Demand Registrations securities which, in the good faith opinion of such underwriters, can be sold, selected from the securities requested to be included by all Holders and such other holders pro rata based on the number of securities which Apollo is otherwise entitled and, none each of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofthem owns.
Appears in 1 contract
Sources: Shareholder Agreement (Rayovac Corp)
Demand Registrations. Apollo may(a) Subject to the terms and conditions hereof, at solely during any time during period that the Term Company is then ineligible under Applicable Law to register Registrable Securities on a registration statement on Form S-3, or if the Company is so eligible but has failed to comply with its obligations under Section 6.3, any Demand Shareholder(s) (whether singular or plural, referred to herein as “Requesting Shareholders”) shall be entitled to make no more than [* * *] written requests of this Agreementthe Company (each, by written notice (a “Demand NoticeDemand”) delivered to the Company, require the Company to register for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders that equals or is greater than the Registrable Amount (a “Demand Registration,” and such registration statement, a “Demand Registration Statement”). Thereupon, the Company shall, subject to the terms of this Agreement, file the Demand Registration Statement no later than thirty (30) all or part days after receipt of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant and shall use its commercially reasonable efforts to this Section 2 shall specify effect the number of shares of Registrable Common Stock to be registered and registration as promptly as practicable under the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoingSecurities Act of:
(i) the Registrable Securities which the Company shall not be required has been so requested to effect more than two Demand Registrations during register by the term Requesting Shareholders for disposition in accordance with the intended method of this Agreementdisposition stated in such Demand;
(ii) if all other Registrable Securities which the Company has previously effected an Effected Demand Registration been requested to register pursuant to Section 6.1(b), but subject to Section 6.1(g); and
(iii) all shares of Common Stock which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 26.1, 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 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 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 five days after the Company’s notice required by this paragraph has been given, provided that if such five-day period ends on a day that is not a Business Day, such period shall be required deemed to file another Registration Statement pursuant 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 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected 6.1(b).
(c) A Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required deemed to file another have been made and shall not count for purposes of the limitation on Demands in Section 6.1(a) (i) unless the Demand Registration Statement with respect thereto has become effective and has remained effective for a period of at least 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 the Company or the lead managing underwriter(s) pursuant to the provisions of this Section 2 until 180 Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to 105 days have elapsed from the earlier of (A) the date after effectiveness, to any stop order, injunction, or other order or requirement of the completion 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 sale of all Registrable Common Stock registered pursuant Commission as shall be selected by the Company and reasonably acceptable to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;Requesting Shareholders.
(iiie) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the The Company shall not be obligated to file (i) subject to Section 6.1(c), maintain the effectiveness of a Demand Registration Statement before registration statement under the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect Securities Act filed pursuant to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for a period longer than 105 days or (ii) effect any Demand Registration (A) within 90 days of a “firm commitment” Underwritten Offering in which all Demand Shareholders were offered “piggyback” rights pursuant to Section 6.2 (subject to Section 6.2(b)) and at least 50% of the Permitted Delay Period number of Registrable Securities requested by such Demand Shareholders to be included in such Demand Registration were included, (as defined belowB) from within 90 days of the date completion of any other Demand Registration (including, for the avoidance of doubt, any Underwritten Offering pursuant to any Shelf Registration Statement), (C) within 90 days of the completion of any other Underwritten Offering by the Company first gives Apollo notice or any shorter period during which the Company has agreed not to effect a registration or public offering of securities (in each case only to the extent that the Company has undertaken contractually to the underwriters of such delay by written notice Underwritten Offering not to Apollo stating effect any registration or public offering of securities), or (D) if, in the reason Company’s reasonable judgment, it is not feasible for and the extent Company to proceed with the Demand Registration because of any such delay, if the Board unavailability of Directors audited or other required financial statements of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Companyor any other Person; provided, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material shall (I) use its commercially reasonable efforts to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(aobtain such financial statements as promptly as practicable and (II) shall be a period liable for and promptly indemnify Amazon for all Losses incurred by Amazon or its Affiliates that arise out of days of up or relate to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency unavailability of such delay by financial statements.
(f) The Company shall be entitled to (i) postpone (upon written notice to the Demand Shareholders) the filing or the effectiveness of a registration statement for any Demand Registration, (ii) cause any Demand Registration Statement to be withdrawn and its effectiveness terminated, and (iii) suspend the use of the prospectus forming part of any registration statement, 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 (ii) of the definition thereof, the Company 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 Company, the conditions described in clause (ii) of the definition of Blackout Period are met. If Apollo withdraws its Such certificate shall contain an approximation of the anticipated delay. Upon notice by the Company to the Demand Notice Shareholders of any such determination, each Demand Shareholder covenants that, subject to Applicable Law, it shall keep the fact of any such notice strictly confidential, and in the case of a Blackout Period pursuant to this Section 2(aclause (ii)(y) during of the pendency 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 delaynotice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration Statement, each prospectus included therein, and any amendment or supplement thereto by it and any of its Affiliates for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall not constitute be earlier terminated in writing by the Company).
(g) If, in connection with a Demand Registration under this Agreement and shall not reduce that involves an Underwritten Offering, the number lead managing underwriter(s) advise(s) the Company that, in its (their) good faith opinion, the inclusion of Demand Registrations to which Apollo is otherwise entitled and, none all of the costs and expenses incurred by Apollo or the Company securities sought to be registered in connection with such withdrawn Demand Registration would adversely affect the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Demand Shareholders, which, in the opinion of the lead managing underwriter(s), can be sold without adversely affecting the success thereof, pro rata among such Demand Shareholders on the basis of the number of such Registrable Securities requested to be included by such Demand Shareholders; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or 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 considered Expenses for reasonably acceptable to the purpose of calculating Excess Expenses pursuant Company (such acceptance not to Section 7 hereofbe unreasonably withheld, conditioned, or delayed).
Appears in 1 contract
Demand Registrations. Apollo may(a) Subject to the terms and conditions hereof, at any time during if the Term Company has failed to comply with its obligations under Section 2.1 (other than due to a material breach by a Holder of this Agreement), by it being noted for the avoidance of doubt that any such failure shall not be deemed cured as a result of the Company’s compliance with this Section 2.2, the Demand Shareholder(s) (whether singular or plural, referred to herein as “Requesting Shareholders”) shall be entitled to make no more than (A) three written notice requests under this Section 2.2 and Section 2.1 in the aggregate in any twelve-month period and (B) six written requests under this Section 2.2 and Section 2.1 in the aggregate, of the Company (each, a “Demand NoticeDemand”) delivered to the Company, require the Company to register for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders that equals or is greater than the Registrable Amount (a “Demand Registration,” and such registration statement, a “Demand Registration Statement”). Thereupon, the Company shall, subject to the terms of this Agreement, file the Demand Registration Statement no later than thirty (30) all or part calendar days after receipt of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant and shall use its commercially reasonable efforts to this Section 2 shall specify effect the number of shares of Registrable Common Stock to be registered and registration as promptly as practicable under the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoingSecurities Act of:
(i) the Registrable Securities which the Company shall not be required has been so requested to effect more than two Demand Registrations during register by the term Requesting Shareholders for disposition in accordance with the intended method of this Agreementdisposition stated in such Demand;
(ii) if all other Registrable Securities which the Company has previously effected an Effected Demand Registration been requested to register pursuant to Section 2.2(b), but subject to Section 2.2(g); and
(iii) all shares of Common Stock which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 22.2, but subject to Section 2.2(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 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 three calendar days after receipt of a Demand, the Company shall give written notice of such Demand to all other Holders. The Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein within five calendar days after the Company’s notice required by this paragraph has been given, provided that if such five-day period ends on a day that is not a Business Day, such period shall be required deemed to file another Registration Statement pursuant 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 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected 2.2(b).
(c) A Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required deemed to file another have been made and shall not count for purposes of the limitation on Demands in Section 2.2(a) (i) unless the Demand Registration Statement with respect thereto has become effective and has remained effective for a period of at least 105 calendar 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 refrain from selling any securities included in such registration statement at the request of the Company or the lead managing underwriter(s) pursuant to the provisions of this Section 2 until 180 Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to 105 calendar days have elapsed from the earlier of (A) the date after effectiveness, to any stop order, injunction, or other order or requirement of the completion Commission or other Governmental Entity, other than by reason of any act or omission by the applicable Selling Shareholders (as defined below).
(d) Demand Registrations shall be on such appropriate registration form of the sale of all Registrable Common Stock registered pursuant Commission as shall be selected by the Company and reasonably acceptable to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;Requesting Shareholders.
(iiie) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the The Company shall not be obligated to file (i) subject to Section 2.2(c), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration Statement before the earlier for a period longer than 105 calendar days or (ii) effect any Demand Registration (A) within 90 calendar days of a “firm commitment” Underwritten Offering in which all Demand Shareholders were offered “piggyback” rights pursuant to Section 2.3 (subject to Section 2.3(b)) and at least 50% of the date on number of Registrable Securities requested by such Demand Shareholders to be included in such Demand Registration were included, (B) within 90 calendar days of the completion of any other Underwritten Offering (including, for the avoidance of doubt, an Underwritten Offering pursuant to a Demand Registration) by the Company, a Holder or an Amazon Holder, or any shorter period during which the lock-up agreementCompany has agreed not to effect a registration or public offering of securities (in each case only to the extent that the Company has undertaken contractually to the underwriters of such Underwritten Offering not to effect any registration or public offering of securities), if anyor (C) if, in the Company’s reasonable judgment, it is not feasible for the Company to proceed with the Demand Registration because of the unavailability of audited or other required financial statements of the Company or any other Person; provided, that Apollo has entered into the Company shall use its commercially reasonable efforts to obtain such financial statements as promptly as practicable.
(f) The Company shall be entitled to (i) postpone (upon written notice to the Requesting Shareholders) the filing or the effectiveness of a registration statement for any Demand Registration and (ii) suspend the use of the prospectus forming part of any registration statement, 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, the Company shall deliver to the Holders requesting registration a certificate signed by either the chief executive officer or the chief financial officer of the Company certifying that the conditions described in the definition of Blackout Period are met. Such certificate shall contain an approximation of the anticipated delay. Upon notice by the Company to such Holders of any such determination, each such Holder covenants that, subject to Applicable Law, it shall keep the fact of any such notice strictly confidential, and in the case of a Blackout Period pursuant to clause (y) of the definition of Blackout Period, promptly halt any offer, sale, trading or other Transfer by it or any of its Affiliates of any Registrable Securities for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration Statement, each prospectus included therein, and any amendment or supplement thereto by it and any of its Affiliates for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company).
(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) good faith opinion, the inclusion of all of the securities sought to be registered in connection with such Demand Registration would adversely affect the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Demand Shareholders, 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, Equity Securities of the Company held by Amazon Holders that are of the same class or series as the Registrable Securities to be sold who properly requested to include such securities in such offering pursuant to the Amazon Transaction Agreement; (iii) third, a pro rata number of shares of Common Stock to consist of (y) Registrable Securities of Holders other than the Demand Shareholders, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Holders, and (z) shares of Common Stock held by Other Demanding Sellers having rights of registration on parity with the Piggyback Sellers with respect to such Registration Statement expiresoffering (in each case, or based on the date that is 180 days after the effective date number of shares of Common Stock properly requested to be included in such Registration Statement. Notwithstanding the foregoingoffering); and (iv) fourth, securities the Company may delay proposes to sell.
(h) Any time that a Demand Registration for involves an Underwritten Offering, the Permitted Delay Period 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 defined belowlead or co-lead) from and underwriters with respect to the date the Company first gives Apollo notice offering of such delay by written notice to Apollo stating the reason for Registrable Securities; provided, that such investment banker(s) and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(amanager(s) shall be a period of days of up reasonably acceptable to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration(such acceptance not to be unreasonably withheld, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delayconditioned, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofdelayed).
Appears in 1 contract
Sources: Registration Rights Agreement (Clean Energy Fuels Corp.)
Demand Registrations. Apollo may, at any time during Subject to the Term provisions of Section 5 in the event of assignment of this Agreement, by if the Company shall receive a written notice (request from Security Holder requesting that the Company file a “Demand Notice”) delivered Registration Statement relating to Registrable Securities, the Company will as promptly as practicable prepare and file a Registration Statement and use reasonable best efforts to cause the Registration Statement to become effective; subject, however, to the Company, require following provisions:
(1) the Company shall be required to register under the Securities Act (a “Demand Registration”) all or part file no more than an aggregate of the Registrable Common Stock two Registration Statements on behalf of Apollo and any Security Holder (or Permitted Transferee in the event of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes an assignment of this Section 2. All requests for Demand Registrations made Agreement) pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:Subsection A;
(i2) the Company shall not be required obligated (i) to effect more file a requested Registration in the event that the aggregate number of Registrable Securities to be included in such requested Registration is less than two Demand Registrations during 500,000 shares of the term of this Agreement;
issued and outstanding Common Stock; or (ii) if to prepare or file such Registration Statement or an amendment or supplement thereto, and may suspend sales, at any time when the Company has previously effected reasonably determines (by action of the Company's Board of Directors or an Effected Demand Registration officer duly authorized by the Board of Directors to make such decision) that the filing thereof at the time requested, or the offering of Registrable Securities pursuant thereto, would materially and adversely affect a pending or proposed offering of securities of the Company, an acquisition, merger, recapitalization, consolidation, reorganization or similar transaction relating to this Section 2, the Company shall or negotiations, discussions or pending proposals with respect thereto or require premature disclosure of information not be otherwise required to file another Registration Statement pursuant be disclosed to this Section 2 until 180 days have elapsed from the date on which potential detriment of the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SECCompany; provided, thathowever, if the previous Effected Demand that such period of sale or distribution shall resume after any such suspension for a number of days necessary to keep such Registration was effected effective for permitted sales thereunder for a term of 90 days. The filing of a Registration Statement, or any amendment or supplement thereto, by a “shelf” registration as requested by Apollo, the Company shall may not be required to file another Registration Statement deferred, and the sale and distribution of shares may not be suspended, in each case pursuant to this Section 2 until 180 the foregoing provisions, for more than 60 days have elapsed from after the earlier of abandonment or consummation (A) the date of or the completion of the sale distribution of securities in the case of a public offering) of any of the proposals or transactions described therein or, in any event, for more than 120 days during any one year;
(3) a Registration Statement filed pursuant to a request of Security Holder shall first include all Registrable Common Stock registered pursuant Securities requested to be included by Security Holder and, only after such Effected Demand Registration and (B) inclusion, may, include securities of the date Company being sold for the account of expiration or withdrawal the Company; provided, however, that securities to be offered on behalf of the Company will be included in such Registration Statement only to the extent that, in the reasonable opinion of the managing underwriter for the Public Offering of Registrable Securities on behalf of Security Holder, such Effected Demand Registrationinclusion will not materially adversely affect the distribution of Registrable Securities on behalf of Security Holder;
(iii4) each Demand Registration the selection of an underwriter for a Public Offering of Registrable Securities by Security Holder shall be subject to the approval of the Company, which shall not be unreasonably withheld;
(5) for at least one million shares purposes of Registrable Common Stockparagraph (1) of this Subsection A, if a requested Registration Statement is filed and the Company otherwise complies with its obligations hereunder, but the Registration Statement is withdrawn by Security Holder due to a delay in the offering requested by the Company for a period of more than 15 business days pursuant to paragraph (2) of this Subsection A, then no requested Registration Statement shall be deemed to have been filed; and
(iv6) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period no Other Holder (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up entitled to 90 days; provided, however, include securities or piggyback in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay demanded by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofSecurity Holder.
Appears in 1 contract
Demand Registrations. Apollo may(i) Subject to Sections 2.1(b) and 2.3 below, at any time during each of (i) the Term of this AgreementGSCP Parties and (ii) the MTS Entities, by written notice (a “Demand Notice”) delivered shall have the right to the Company, require the Company to register file a registration statement under the Securities Act covering all or any part of their respective Registrable Securities, by delivering a written request therefor to the Company specifying the number of Registrable Securities to be included in such registration by such Holder(s) and the intended method of distribution thereof. All such requests by any Holder(s) pursuant to this Section 2.1(a)(i) are referred to herein as "Demand Registration Requests," and the registrations so requested are referred to herein as "Demand Registrations" (with respect to any Demand Registration, the Holder(s) making such demand for registration being referred to as the "Initiating Holder"). As promptly as practicable, but no later than ten days after receipt of a Demand Registration Request, the Company shall give written notice (the "Demand Exercise Notice") of such Demand Registration Request to all Holders of record of Registrable Securities. After the Company has effected two Demand Registrations pursuant to this Section 2.1(a)(i) at the request of the GSCP Parties and one Demand Registration pursuant to this Section 2.1(a)(i) at the request of the MTS Entities, the related registration statements have been declared effective, and with respect to a shelf registration pursuant to Rule 415 under the Securities Act, the distribution contemplated thereunder completed, the Company shall have no further obligation under this Section 2.1(a)(i); provided however, that with respect to a shelf registration pursuant to Rule 415 under the Securities Act, such registration statement shall have been effective for a period of not less than 60 days.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holder and (y) the Registrable Securities of any other Holder which shall have made a written request to the Company for inclusion in such registration (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Holder) within 30 days after the receipt of the Demand Exercise Notice (or, 15 days if, at the request of the Initiating Holder or the Major Holder participating in such registration, the Company states in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form S-3).
(iii) The Company shall, as expeditiously as possible, use its best efforts to (x) effect such registration under the Securities Act (including, without limitation, by means of a “Demand Registration”shelf registration pursuant to Rule 415 under the Securities Act if so requested and if the Company is then eligible to use such a registration) all or part of the Registrable Common Stock on behalf Securities which the Company has been so requested to register, for distribution in accordance with such intended method of Apollo distribution, and any (y) if requested by the Initiating Holder or the Major Holder participating in such registration, obtain acceleration of its Affiliates which hold Registrable Common Stock. Requests from Apollo the effective date of the registration statement relating to include shares in a Piggyback Registration shall not constitute a such registration.
(b) The Demand Registration for purposes of this rights granted in Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything 2.1(a) to the contrary in Holders are subject to the foregoing:
following limitations: (i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the cause a registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related 2.1(a)(i) to such Piggy-Back Registration when such Registration Statement is be declared effective by the SEC, the Company shall not be obligated to file within a Demand Registration Statement before the earlier period of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, any registration statement of the Company may delay registering shares of Common Stock or Common Stock Equivalents (other than pursuant to a Demand Registration for the Permitted Delay Period registration statement on Form S-4 or S-8 or an equivalent registration form then in effect); and (as defined belowii) from the date if the Company first gives Apollo notice shall furnish to Holders who have elected to exercise their rights under Sections 2.1(a)(i) and 2.1(a)(ii) a certificate signed by the President or the Chief Executive Officer of such delay by written notice to Apollo the Company stating that, in the reason for and the extent good faith judgment of any such delay, if the Board of Directors of the Company determines Company, effecting the registration would adversely affect any material financing, material acquisition, or disposition of material assets or stock, or merger or other material comparable transaction or that disclosure of certain information that would otherwise be required to be disclosed in good faith that proceeding with the proposed offering a Registration Statement to be filed pursuant to Section 2.1(a)(i) would have a material adverse effect on be seriously detrimental to the Company, or during and it is therefore desirable and in the pendency of a transaction that the Board of Directors best interests of the Company determines in good faith is material to defer the Company. As used hereinfiling of such registration statement, then the “Permitted Delay Period” pursuant Company shall have the right to this Section 2(a) shall be defer such filing for a period of days time after receipt of up to 90 dayssuch request; provided, however, in no event shall that the Company delay may not defer such filing more than once in any Demand Registration for a longer 12-month period than and the Board aggregate period of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall time during any such 12-month period which the Company delay a Demand Registration more than oncemay defer such filing shall not exceed 90 days. If the Company delays shall give any notice of postponement of any registration statement, the Demand RegistrationCompany shall not, Apollo may withdraw its Demand Notice during the pendency period of postponement, register any Common Stock, other than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in effect). If the Company shall withdraw or prematurely terminate a registration statement filed under Section 2.1(a)(i) as a result of any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of postponement of a registration statement, the Company shall, at the end of such delay postponement period (which shall not exceed 90 days), use its best efforts to effect the registration under the Securities Act of the Registrable Securities covered by written notice the postponed registration statement in accordance with this Section 2.1 (unless the Initiating Holder shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of this Agreement).
(c) If the Company, or any stockholder (other than a Holder) that has piggyback registration rights granted to such stockholder by the Company prior to the Company. If Apollo withdraws date hereof ("Additional Piggyback Rights"), wishes to offer any of its Demand Notice securities in connection with any registration initiated pursuant to this Section 2(a) during 2.1, no such securities may be offered by the pendency Company or such other stockholder without the consent of the Major Holder unless the terms of such delayAdditional Piggyback Rights require that such securities be registered in connection with any such Demand Registration, in which case such securities shall be offered only to the extent permitted by Section 2.3(a).
(d) In connection with any Demand Registration, the Demand Registration Major Holder participating in such registration shall have the right to designate, (i) if ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or one of its Affiliates (such Person, "GS & Co.") is not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred retained by Apollo or the Company to serve as the lead managing underwriter in connection with such withdrawn Demand Registration shall be considered Expenses registration, the lead managing underwriter for such registration and (ii) each other managing underwriter for such registration, provided that each such other managing underwriter is reasonably satisfactory to the purpose of calculating Excess Expenses pursuant to Section 7 hereofCompany.
Appears in 1 contract
Sources: Registration Rights Agreement (Goldman Sachs Group Inc)
Demand Registrations. Apollo may(a) Unless the shelf registration contemplated by Section 1.2 or the piggy-back registration contemplated by Section 1.4 has been filed and declared effective by the SEC, covers all then outstanding Registrable Securities and is then currently in effect, then the Company shall, at the request of the Holders of at least 250,000 shares of Registrable Securities, prepare and use its commercially reasonable efforts to file with the SEC as promptly as practicable, but in any event within 45 days of such request, a registration statement on Form S-3 covering the resale of the Registered Securities requested to be covered by such demand. The Company shall use its commercially reasonable efforts to cause such registration statement to be filed not later than 45 days following the receipt of the notice of demand for registration under this Section 1.3, and shall use its commercially reasonable efforts to cause such registration statement to be declared effective under the Act (including filing with the SEC a request for acceleration of effectiveness in accordance with Rule 12d1-2 promulgated under the ▇▇▇▇ ▇▇▇) as promptly as practicable after the filing thereof, but in any event prior to the Effectiveness Due Date, and to keep such registration statement continuously effective under the Act until the date on which all Registrable Securities covered by such registration statement have been sold or cease to be Registrable Securities, or such earlier time during that the Term of this AgreementHolders may sell all their Registrable Securities within a single 90-day period under Rule 144 (such period, by the "Effectiveness Period"); provided that the Company shall provide the Holders with written notice of its intent to terminate the effectiveness of such registration statement not fewer than three (a “Demand Notice”3) delivered business days prior to such termination. Notwithstanding the foregoing, if at the time the Holders deliver to the Company, require the Company to register under the a notice requesting registration of Registrable Securities Act (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i1.3(a) the Company shall not be required Holders are able to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration sell pursuant to this Section 2Rule 144, within the 90 day period commencing on the date that the demand notice is received by the Company, all of the Registrable Securities that are then not covered by an effective registration statement, then the Company shall not be required to file another Registration Statement a registration statement pursuant to this Section 2 until 180 days 1.3 in response to such demand, and such request shall not be deemed a demand registration for purposes of Section 1.3(f) of this Agreement.
(b) Notwithstanding the foregoing, if the Company shall furnish to Holders participating in the registration pursuant to this Section 1.3 a certificate signed by the President of the Company stating that a Blackout Period is in effect, the Company shall have elapsed from the date on which right to defer such filing or sales under the registration statement filed with the SEC pursuant to this Section 1.3 during the term of such Effected Demand Registration was Blackout Period; PROVIDED, HOWEVER, that the Company may utilize such deferral (including any such deferral that may be declared effective by pursuant to Section 1.2(b)) not more than once in any 12-month period.
(c) If, at any time during the SEC; providedEffectiveness Period, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by ApolloCompany is not eligible to register its securities on Form S-3, the Company shall not prepare and file a registration statement on Form S-1 or S-2 (or other available form for the general registration of securities) as may be required necessary to file another Registration Statement register all Registrable Securities in accordance with the terms and conditions set forth in this Section 1.3.
(d) The Company may propose to include Additional Securities in any registration statement to be filed pursuant to this Section 2 until 180 days 1.3. The Holders shall have elapsed from the earlier right to reduce the number of Additional Securities requested to be registered by the Company pursuant to this Section 1.3(d) (Aincluding, if necessary, to zero) if, in the date good faith opinion of the completion underwriter or underwriters of such offering, the inclusion of such Additional Securities would materially and adversely affect the marketability or price of the sale of all Registrable Common Stock registered pursuant Securities to be offered by the Holders in such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;registration.
(iiie) each Demand Registration The Holders shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant have the right to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on select the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreementunderwriter or underwriters, if any, that Apollo has entered into with respect subject to such Registration Statement expires, or the date that is 180 days after the effective date approval of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, which approval shall not be unreasonably withheld or during delayed, that will undertake the pendency of a transaction that the Board of Directors sale and distribution from time to time of the Registrable Securities included in a registration statement filed under the provisions of this Section 1.3.
(f) The Company determines in good faith is material shall be obligated to the Company. As used herein, the “Permitted Delay Period” effect only one (1) such demand registrations pursuant to this Section 2(a1.3.
(g) The Holders of Registrable Securities may withdraw their demand for any proposed offering pursuant to a demand registration by giving written notice from a majority of such Holders to the Company of their election to withdraw prior to the effectiveness of the registration statement with the SEC. If such withdrawing Holders pay all registration expenses incurred in connection with such demand registration, then no demand registration shall be a period deemed to have been made for purposes of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than onceSection 1.3(f). If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency such withdrawing Holders do not pay all registration expenses set forth in Section 1.7 of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such demand registration, then such withdrawn Demand Registration registration shall be considered Expenses deemed a demand registration for the purpose purposes of calculating Excess Expenses pursuant to Section 7 hereof1.3(f) above.
Appears in 1 contract
Demand Registrations. Apollo may, (a) If the Company shall receive from (i) New Mountain at any time during after the Term closing of this Agreementthe IPO or (ii) any other Holder or group of Holders holding Registrable Securities at any time beginning on the first (1st) anniversary of the closing of the IPO, by a written notice request that the Company file a registration statement with respect to all or a portion of the Registrable Securities (a “Demand Registration Request,” and the registration so requested is referred to herein as a “Demand Registration,” and the sender(s) of such request pursuant to this Agreement shall be known as the “Initiating Holder(s)”), then the Company shall, within 10 Business Days of the receipt thereof, give written notice (the “Demand Exercise Notice”) delivered of such request to all other Holders, and subject to the Companylimitations of this Section 2.1, require use its reasonable best efforts to effect, as soon as practicable, the Company to register registration under the Securities Act (including, without limitation, by means of a “Demand Registration”shelf registration pursuant to Rule 415 thereunder if so requested and if the Company is then eligible to use such a registration) of all Registrable Securities that New Mountain or part the Holders request to be registered.
(b) Notwithstanding the foregoing to the contrary, if during the twelve (12)-month period following the first (1st) anniversary of the Registrable Common Stock on behalf closing of Apollo and any the IPO, the demand for registration is made pursuant to clause (ii) of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Section 2.1(a) above, the Board may, within five Business Days of the receipt by the Company of the Demand Registration Request, request that such demand be deferred for purposes a period not to exceed the earlier of (a) ninety (90) days following the date of such demand (which ninety (90)-day period may be extended to one hundred and fifty (150) days by the Board), or (b) the second (2nd) anniversary of the closing of the IPO, and upon such request the subject demand shall be automatically deemed to have been deferred to such earlier date unless withdrawn by the Initiating Holder(s) (and provided that the Company shall pay all expenses, if any, of any such withdrawn demand registration); provided that (x) New Mountain may not make any demand for registration during the period in which the demand of such Initiating Holders is deferred pursuant to this Section 2. All requests for paragraph, and (y) the right provided to the Board in this paragraph may not be exercised by the Board more than once in such twelve (12)-month period.
(c) There is no limitation on the number of Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) 2.1 which the Company shall not be required is obligated to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SECeffect. However, the Company shall not be obligated to file take any action to effect any Demand Registration:
(i) within 30 days after a Demand Registration Statement pursuant to this Section 2.1 that has been declared or ordered effective;
(ii) during the period any applicable restrictions are still in effect pursuant to any Lock-Up Agreement that have not been waived (or are not reasonably expected to be waived) by the underwriters party thereto;
(iii) where the anticipated offering price, before the earlier any underwriting discounts or commissions and any offering-related expenses, is equal to or less than $20,000,000, unless such registration would represent all of the date on which remaining Registrable Securities owned by the lock-up agreement, Initiating Holder(s);
(iv) if any, that Apollo has entered into with respect the Company shall furnish to such Holders a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board (after consultation with external legal counsel), any registration of Registrable Securities should not be made or continued (or sales under a shelf registration statement should be suspended) because (i) such registration (or continued sales under a shelf registration statement) would materially and adversely interfere with any existing or potential material financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Company or any of its subsidiaries or (ii) the Company is in possession of material non-public information, the premature disclosure of which has been determined by the Board to not be in the Company’s best interests (in either case, a “Valid Business Reason”), then (x) the Company may postpone filing a registration statement relating to a Demand Registration Statement expiresRequest or suspend sales under an existing shelf registration statement until five Business Days after such Valid Business Reason no longer exists, or the date that is 180 but in no event for more than 90 days after the effective date of such the Board determines a Valid Business Reason exists and (y) in the case a registration statement has been filed relating to a Demand Registration Statement. Notwithstanding Request, if the foregoingValid Business Reason has not resulted from actions taken by the Company, the Company may delay a Demand Registration cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until five Business Days after such Valid Business Reason no longer exists, but in no event for the Permitted Delay Period (as defined below) from more than 90 days after the date the Board determines a Valid Business Reason exists; and the Company first gives Apollo notice of such delay by shall give written notice to Apollo stating the reason for Participating Holders of its determination to postpone or withdraw a registration statement or suspend sales under a shelf registration statement and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction fact that the Board of Directors of Valid Business Reason for such postponement, withdrawal or suspension no longer exists, in each case, promptly after the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 daysoccurrence thereof; provided, however, in no event shall that the Company delay shall not defer its obligation in this manner for more than (i) 60 days in any Demand Registration 90 day period or (ii) for a longer period than periods exceeding, in the Board of Directors determines aggregate, 90 days in good faith is necessary under the existing circumstancesany 12 month period; provided further that or
(v) in no event shall any particular jurisdiction in which the Company delay would be required to qualify to do business or to execute a Demand Registration more than oncegeneral consent to service of process in effecting such registration, qualification or compliance. If the Company delays shall give any notice of postponement, withdrawal or suspension of any registration statement pursuant to clause (iv) of this Section 2.1(c), the Company shall not, during the period of postponement, withdrawal or suspension, register any Company Shares, other than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in effect). Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw any registration statement pursuant to clause (iv) of this Section 2.1(c), such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement and, if so directed by the Company, will deliver to the Company (at the Company’s expense) all copies, other than permanent file copies, then in such Holder’s possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice. If the Company shall have withdrawn or prematurely terminated a registration statement filed pursuant to a Demand Registration (whether pursuant to clause (iv) of this Section 2.1(c) or as a result of any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement, the Company shall, not later than five Business Days after the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event later than 90 days after the date of the postponement or withdrawal), use its reasonable best efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with Section 2.1 (unless the Initiating Holders shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of this Agreement), and such registration shall not be withdrawn or postponed pursuant to clause (iv) of this Section 2.1(c).
(i) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities which shall have made a written request to the Company for inclusion in such registration pursuant to Section 2.2 (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Participating Holder) within ten Business Days after the receipt of the Demand Exercise Notice.
(ii) The Company shall, as expeditiously as possible, but subject to the limitations set forth in this Section 2.1, use its reasonable best efforts to (x) effect such registration under the Securities Act (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the Securities Act if so requested and if the Company is then eligible to use such a registration) of the Registrable Securities which the Company has been so requested to register, for distribution in accordance with such intended method of distribution and (y) if requested by the Majority Participating Holders or, in the case where the Initiating Holder is New Mountain, New Mountain, obtain acceleration of the effective date of the registration statement relating to such registration.
(e) In connection with any Demand Registration, Apollo may withdraw its Demand Notice during the pendency Initiating Holder shall have the right to designate the lead managing underwriter (any lead managing underwriter for the purposes of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delayAgreement, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company “Manager”) in connection with such withdrawn Demand Registration registration and each other managing underwriter for such registration.
(f) If so requested by the Initiating Holder(s), the Company (together with all Holders proposing to distribute their securities through such underwriting) shall be considered Expenses enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the purpose Initiating Holder in its sole discretion.
(g) Any Holder that intends to sell Registrable Securities by means of calculating Excess Expenses a shelf registration pursuant to Section 7 hereofRule 415 thereunder shall give the Company two days’ prior notice of any such sale.
Appears in 1 contract
Sources: Registration Rights Agreement (Signify Health, Inc.)
Demand Registrations. Apollo may(a) Subject to the terms and conditions hereof, at (x) solely during any time during period that the Term Company is then ineligible under Applicable Law to register Registrable Securities on Form S‑3, or if the Company is so eligible but has failed to comply with its SV:315627.6 1001640689v15 obligations under Section 4.3 or (y) following the expiration of this Agreementthe Company’s obligation to keep the Shelf Registration Statement continuously effective pursuant to Section 4.3(c), by 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 notice requests of the Company (each, a “Demand NoticeDemand”) delivered to the Company, require the Company to register for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders that equals or is greater than the Registrable Amount (a “Demand Registration” and such registration statement, a “Demand Registration Statement”). Thereupon, the Company shall, subject to the terms of this Agreement, use its commercially reasonable efforts to effect the registration as promptly as practicable (but no later than forty-five (45) all or part days after receipt of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify Demand) under the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoingSecurities Act of:
(i) the Registrable Securities which the Company shall not be required has been so requested to effect more than two Demand Registrations during register by the term Requesting Shareholders for disposition in accordance with the intended method of this Agreementdisposition stated in such Demand;
(ii) if all other Registrable Securities which the Company has previously effected an Effected Demand Registration been requested to register pursuant to Section 4.1(b), but subject to Section 4.1(g); and
(iii) all shares of Company Common Stock which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 24.1, but subject to Section 4.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and 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 not be 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 file another Registration Statement pursuant to Section 4.1(g). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected 4.1(b).
(c) A Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required deemed to file another have been effected (i) unless the Demand Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier with respect thereto has become effective and has remained effective for a period of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares 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 Common Stock; andSV:315627.6 1001640689v15 Securities refrain from selling any securities included in such registration statement at the request of the Company or the lead managing underwriter(s) pursuant to the provisions of this Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to one hundred five (105) days after effectiveness, to any stop order, injunction or other order or requirement of the Commission or other Governmental Authority, other than by reason of any act or omission by the applicable Selling Shareholders.
(ivd) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares Demand Registrations shall be on such appropriate registration form of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective Commission as shall be selected by the SEC, Company and reasonably acceptable to the Requesting Shareholders.
(e) The Company shall not be obligated to file (i) subject to Section 4.1(c), maintain the effectiveness of a Demand Registration Statement before registration statement under the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect Securities Act filed pursuant to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for a period longer than one hundred five (105) days or (ii) effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Demand Shareholders were offered “piggyback” rights pursuant to Section 4.2 (subject to Section 4.2(b)) and at least fifty percent (50%) of the Permitted Delay Period number of Registrable Securities requested by such Demand Shareholders to be included in such Demand Registration were included, (as defined belowB) from within ninety (90) days of the date completion of any other Demand Registration (including, for the avoidance of doubt, any Underwritten Offering pursuant to any Shelf Registration Statement) or (C) if, in the Company’s good faith determination, it is not feasible for the Company first gives Apollo notice to proceed with the Demand Registration because of such delay by written notice to Apollo stating the reason for and the extent unavailability of any such delay, if the Board of Directors audited or other required financial statements of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 daysany other Person; provided, however, in no event shall that the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the use its commercially reasonable efforts to obtain such financial statements as promptly as practicable.
(f) The Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by shall be entitled to (i) postpone (upon written notice to the Demand Shareholders) the filing or the effectiveness of a registration statement for any Demand Registration, (ii) cause any Demand Registration Statement to be withdrawn and its effectiveness terminated and (iii) suspend the use of the prospectus forming the part of any registration statement, in each case in the event of a Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period under clause (ii) of the definition thereof, the Company 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 Company, the conditions described in clause (ii) of the definition of Blackout Period are met. If Apollo withdraws its Such certificate shall contain an approximation of the anticipated delay. Upon notice by the Company to the Demand Notice Shareholders of any such determination, each Demand Shareholder covenants that, subject to Applicable Law, it shall keep the fact of any such notice strictly confidential, and, in the case of a Blackout SV:315627.6 1001640689v15 Period pursuant to this Section 2(aclause (ii)(y) during of the pendency 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 delaynotice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration Statement, each prospectus included therein, and any amendment or supplement thereto by it and any of its Affiliates for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall not constitute be earlier terminated in writing by the Company) and, if so directed in writing by the Company, will deliver to the Company any copies then in the Demand Shareholder’s possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice.
(g) If, in connection with a Demand Registration under this Agreement and shall not reduce that involves an Underwritten Offering, the number lead managing underwriter(s) advise(s) the Company that, in its (their) good faith opinion, the inclusion of Demand Registrations to which Apollo is otherwise entitled and, none all of the costs and expenses incurred by Apollo or the Company securities sought to be registered in connection with such withdrawn Demand Registration would adversely affect the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Demand Shareholders, which, in the opinion of the lead managing underwriter(s), can be sold without adversely affecting the success thereof, pro rata among such Demand Shareholders on the basis of the number of such Registrable Securities requested to be included by such Demand Shareholders; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or 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 considered Expenses for reasonably acceptable to the purpose of calculating Excess Expenses pursuant Company (such acceptance not to Section 7 hereofbe unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Sources: Stockholders Agreement (Air Transport Services Group, Inc.)
Demand Registrations. Apollo may, (a) If at any time during following the Term first anniversary of this Agreementthe date hereof, by written notice (a “Demand Notice”) delivered to the Company, require the Company to register receives a written request that the Company effect a registration under the Securities Act (with respect to the Registrable Securities from Shareholders holding at least a “Demand Registration”) all or part majority of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2Securities, the Company shall not will use its diligent best efforts to effect such registration, which registration may be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the under any form of registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective eligible for use by the SECCompany for such purpose, and as would permit or facilitate the sale and distribution of all or such portion of the Registrable Securities as are specified in such request; provided, thathowever, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, that the Company shall not be obligated to file take any action to effect such registration pursuant to this subparagraph 2(a): (i) after the Company has effected two such registrations pursuant to this subparagraph 2(a) and such registrations have been declared or ordered effective or (ii) to effect a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect registration for less than 500,000 shares. The Company shall not be required to such Registration Statement expires, or the date that is 180 cause a registration statement requested pursuant to this subparagraph 2(a) to become effective prior to 120 days after following the effective date of such Registration Statementa registration statement initiated by the Company or a Shareholder. Notwithstanding The Company shall have the foregoingright to include in a registration statement filed pursuant to this subparagraph 2(a) shares of Common Stock to be offered and sold for the account of the Company or any other security holders of the Company. 3
(b) Subject to subparagraph 2(a) above and the other terms and conditions contained herein, the Company may delay shall file a Demand Registration for registration statement covering the Permitted Delay Period (Registrable Securities so requested to be registered as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of soon as practical, but in any such delay, if the Board of Directors event within 120 days after receipt of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, request or during the pendency of a transaction that the Board of Directors requests of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 daysShareholder or Shareholders; provided, however, in no event shall that the Company delay any Demand Registration may postpone for up to 180 days, the filing or the effectiveness (which may include the withdrawal of an effective registration statement) of such a longer period than registration statement if the Company's Board of Directors reasonably determines in its good faith judgment that it would be materially disadvantageous to the Company for such a registration statement to be filed and become effective, or be maintained effective; and, provided further, that in such event, the Shareholders will be entitled to withdraw such demand for registration and, if such demand is necessary withdrawn, such registration will not count as one of the demand registrations the Shareholders are entitled to hereunder.
(c) The Company shall have the right to select the investment banker(s) and manager(s) to administer and underwrite the offering, subject to the approval of a majority of the Shareholders proposing to distribute their securities through such underwriting, which will not be unreasonably withheld. In connection with any registration statement that pertains to Registrable Securities, all Shareholders proposing to distribute their securities through such underwriting shall (i) enter into any reasonable underwriting agreement required by the proposed underwriter for the registration of Registrable Securities and (ii) immediately notify the Company, at any time when a prospectus relating to the Registrable Securities is required to be delivered under the existing circumstances; provided further that in no Securities Act, of the occurrence of any event shall relating to information respecting such Shareholders as a result of which the Company delay prospectus which forms a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency part of such delay by written notice registration statement contains an untrue statement of a material fact or omits to state any material fact necessary to make the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall statement therein not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofmisleading.
Appears in 1 contract
Demand Registrations. Apollo maySubject to Section 3.3, at any time, and from time during to time, the Term of this Agreement, by Parent Stockholders may make a written notice (a “Demand Notice”) delivered request to the Company, require the Company or its successor to register all or any portion of its shares of Common Stock under the Securities Act (other than pursuant to a Registration Statement on Form S-4 or S-8 or any successor or similar forms thereto) (one or more registrations made in response to such a written request by the Parent Stockholders, a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock). Requests from Apollo to include shares in a Piggyback Registration The written request shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify state the number of shares of Registrable Common Stock held by the Parent Stockholders proposed to be registered Transferred and the intended proposed method or methods of disposition thereofdisposition. Notwithstanding anything to Upon the contrary in Company’s receipt of such written request by the foregoingParent Stockholders:
(i) the Company shall register the shares of Common Stock stated in such request and shall use its reasonable best efforts to cause any such Demand Registration to become effective as promptly as practicable after it receives any request from a Parent Stockholder relating to such Demand Registration, unless the Board of Directors (or the board of directors of the IPO Entity), in its good faith judgment, determines that any registration of such shares should not be required made or continued because it would materially interfere with any material financing, acquisition, corporate reorganization or merger or other material transaction involving the Company or the IPO Entity (a “Valid Business Reason”), in which instance the Company may (x) postpone filing a registration statement relating to effect more than two such Demand Registrations during Registration until such Valid Business Reason no longer exists and (y) in case a registration statement has been filed relating to a Demand Registration, the term Company or the IPO Entity, upon the approval of this Agreement;a majority of the Board of Directors, may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement upon written notice to the Parent Stockholders and the Management Stockholders of such determination, in each case, promptly after the occurrence thereof; and
(ii) if within ten (10) calendar days after the Company has previously effected an Effected Company’s receipt of any request for such Demand Registration pursuant to this Section 2from a Parent Stockholder, the Company shall not give written notice thereof to the Management Stockholders and the Management Stockholders may, within five (5) Business Days after receipt of such written notice, send to the Company a written request to include in such Demand Registration the number of shares of Common Stock equal to the product of the number of shares of Common Stock held by the Management Stockholders as of such time multiplied by the quotient obtained by dividing the number of shares of Common Stock to be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from registered by the date on which the registration statement filed with the SEC Parent Stockholders pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if aggregate number of shares of Common Stock held by the previous Effected Demand Registration was effected by a “shelf” registration Parent Stockholders as requested by Apollo, of such time. Such written request shall be irrevocable. The failure of any of the Management Stockholders to send to the Company such irrevocable written request within such five (5) Business Day period shall not be required deemed to file another Registration Statement pursuant to be a waiver by such Management Stockholder of his or her rights under this Section 2 until 180 days have elapsed from the earlier of (A3.2(a) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of Demand Registration. In connection with any such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled andinvolving an underwritten offering, none of the costs and expenses incurred shares of Common Stock held by Apollo or any of the Company Management Stockholders stated in connection with such withdrawn irrevocable written request for inclusion shall be included unless such Management Stockholders accept the terms of the offering pursuant to such Demand Registration shall be considered Expenses for as agreed upon by the purpose of calculating Excess Expenses pursuant to Section 7 hereofCompany, the Parent Stockholders and the underwriter(s).
Appears in 1 contract
Sources: Stockholders and Registration Rights Agreement (Duane Reade Inc)
Demand Registrations. Apollo may(a) Subject to Section 7.3, at any time during following the Term eighteen-month anniversary of this Agreementthe Closing (or with respect to a registration that would become effective following such eighteen-month anniversary, following the 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 seven (7) separate occasions in the aggregate, and on not more than six (6) separate occasions with respect to any Registrable Securities other than Registrable Securities issued pursuant to Section 4.3 (h) hereof, require (i) prior to the Spin-off, AT&T to file a registration statement under the Securities Act in respect of all or 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 Securities; provided, in each case, that such request involves Registrable Securities having an aggregate Market Value on the date of delivery of such request of at least $500 million (provided that, with respect to a registration statement which relates solely to Registrable Securities issued pursuant to Section 4.3(h) hereof, such request shall be for (i) that number of Registrable Securities equal to the number of Registrable Securities originally issued to DoCoMo pursuant to Section 4.3(h) hereof or (ii) Registrable Securities with an aggregate Market Value of not less than $300 million )) by delivering to the Issuer written notice stating that such right is being exercised, specifying the number of 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 “Demand Shares”) and describing the intended method of distribution thereof, which may include an underwritten offering (a “Demand NoticeRequest”). Upon receiving a Demand Request, the Issuer shall (i) delivered use all reasonable efforts to 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 “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 Company, require the Company to register under the Securities Act intended method of distribution (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if after the Company has previously effected filing of an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which initial version of the registration statement, use all reasonable efforts to cause such registration statement filed with the SEC pursuant to such Effected Demand Registration was be declared effective by under the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration Securities Act as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) promptly as practicable after the date of filing of such registration statement. DoCoMo (including any transferee to which DoCoMo shall have transferred registration rights as permitted hereunder) may not exercise more than one Demand Request in any 7½ month period. In the completion 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 sale of all Registrable Common Stock registered pursuant to Spin-off, such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration Request shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement deemed withdrawn and shall not reduce count for the purposes of determining the number of Demand Registrations to which Apollo DoCoMo is entitled hereunder.
(b) Anything in this Agreement to the contrary notwithstanding, the Issuer shall be entitled to postpone and 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 if the Issuer shall determine that any such filing or the offering of any Registrable Securities would (i) in the good faith judgment of the Board, impede, delay or otherwise entitled interfere with any pending or contemplated material acquisition, corporate reorganization or other similar material transaction involving the Issuer, including without limitation the Spin-off and the proposed Exchange Offer, (ii) based upon advice from the Issuer’s investment banker or financial advisor, adversely affect any pending or contemplated financing, offering or sale of any class of securities by the Issuer or the Spin-off or the proposed Exchange Offer or (iii) in the good faith judgment of the Board, require disclosure of material 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 harmful to the best interests of the Issuer and its stockholders; 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. Upon notice by the Issuer to DoCoMo of any such determination, DoCoMo 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 AT&T Wireless 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 Issuer) 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 the Issuer) and, none if so directed by the Issuer, will deliver to the Issuer any copies then in its possession of the costs and expenses incurred by Apollo or the Company in prospectus covering such Registrable Securities.
(c) In connection with an underwritten offering, if the managing underwriter or co-managing underwriter reasonably and in good faith shall have advised the 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 withdrawn offering, the Issuer shall include in such registration the number of Demand Shares that, in the opinion of such managing underwriter or underwriters, can be sold in such offering; provided that if as a result of any reduction pursuant to this paragraph (c) the aggregate Market Value of the Demand Shares to be so included is less than $500 million or, with respect to a registration statement which relates solely to Demand Shares issued pursuant to Section 4.3(h) hereof, the lesser of (i) $300 million or (ii) the aggregate Market Value of that number of Demand Shares equal to the number of Demand Shares which were originally issued pursuant to Section 4.3(h) hereof ), DoCoMo may withdraw such Demand Request with respect to all Demand Shares covered thereby and such registration shall not 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 the Demand Request DoCoMo has given the Issuer the right to select the managing underwriter (reasonably acceptable to DoCoMo) and the managing underwriter so selected by the Issuer makes the determination that results in the reduction pursuant to this paragraph (c) such that the aggregate Market Value of the Demand Shares to be so included is less than $500 million (or, with respect to a registration statement which relates solely to Demand Shares issued pursuant to Section 4.3(h) hereof, the lesser of (i) $300 million or (ii) the aggregate Market Value of that number of Demand Shares equal to the number of Demand Shares which were originally issued pursuant to Section 4.3(h) hereof), then DoCoMo may elect to proceed with the registration, and such registration shall not count for the purposes of determining the number of Demand Registrations to which DoCoMo is entitled under Section 7.1(a).
(d) In connection with any underwritten offering, the managing underwriter or underwriters for such Demand Registration shall be considered Expenses for selected by DoCoMo; provided that such managing underwriter shall be a nationally recognized investment banking firm and shall be reasonably acceptable to the purpose 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 case may be, will be entitled to select the managing underwriter or underwriters. In addition to the foregoing, the Issuer may, at its option, select a nationally recognized investment banking firm reasonably acceptable to DoCoMo to act as a co-managing underwriter. The Issuer shall have the right to approve the selection of calculating Excess Expenses pursuant the counsel to Section 7 hereofany managing underwriter hereunder, which approval will not be unreasonably withheld.
Appears in 1 contract
Sources: Investor Agreement (NTT Docomo Inc)
Demand Registrations. Apollo may, at (a) At any time during and from time to time, the Term of this Agreement, by written notice Summa Investor(s) (a the “Demand NoticeInitiating Holder(s)”) delivered to the Company, require may request in writing that the Company to register under the Securities Act all or any portion of the Registrable Securities held by the Initiating Holder(s); provided that no Registration Statement need be filed with the Commission (for the avoidance of doubt, this proviso excludes any Registration Statement confidentially submitted to the Commission) prior to the expiration of any “lock-up agreement” entered into with an underwriter in connection with the IPO (unless waived by such underwriter). Upon receipt of such written request, which shall specify the intended method of distribution thereof, the Company shall as soon as possible and in any case within three (3) days deliver notice (any such written notice, a “Demand Notice” and any such registration, a “Demand Registration”) thereof to all Holders (other than the Initiating Holder(s)), if any, who shall then have three (3) Business Days to notify the Company in writing of their desire to be included in such registration. If no request for inclusion from a Holder is received within the specified time, such Holder shall have no further right to participate in such Demand Registration. A Holder who is, or part who is controlled by any person who is, an employee of the Registrable Common Stock on behalf of Apollo and any of Company or its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares Subsidiaries may participate in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify 2.1(a) within the number of shares of Registrable Common Stock to be registered Restrictive Period, only if and the intended methods of disposition thereof. Notwithstanding anything to the contrary in extent the foregoing:
aggregate of (i) the Registrable Securities such Holder will include in such Demand Registration and (ii) the Common Shares such Holder has sold, transferred, assigned, distributed or otherwise conveyed prior to such Demand Registration does not exceed the Maximum Amount of Shares (and where the Initiating Holder(s) shall have the full and absolute discretion to determine the extent by which any cutbacks are required and which Holders will be affected), unless otherwise agreed by the Initiating Holder(s). Subject to the provisions of Section 2.5 below, the Company shall use its reasonable best efforts to file a registration statement for such intended method of distribution, as promptly as practicable, but not later than (x) sixty (60) days after such Demand Notice in the case of a registration with a Long-Form Registration Statement and (y) thirty (30) days after such Demand Notice in the case of a registration with a Short-Form Registration Statement, and in each case 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 (subject to the proviso of the first sentence of this Section 2.1(a)).
(b) Notwithstanding the foregoing, the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to registration under this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of 2.1 before ninety (A90) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such any other previously effective Registration Statement. Notwithstanding the foregoingStatement for an underwritten offering of securities pursuant to a Company-initiated registration (other than pursuant to a registration statement on Form F-▇, the Company may delay ▇-▇ or S-8) or a Demand Registration for the Permitted Delay Period Piggy-Back Underwritten Offering (as defined below) ), provided, however, that nothing in this clause shall derogate from the date Company’s obligations under Section 2.4 hereof.
(c) The Company shall be obligated to effect an unlimited number of registrations for the Company first gives Apollo notice of such delay by written notice Summa Investor(s) under this Section 2.1.
(d) A registration shall not be counted as “effected” if (i) after effectiveness, the Registration Statement becomes subject to Apollo stating the reason for and the extent of any such delaystop order, if the Board of Directors injunction or other order of the Company determines in good faith that proceeding with Commission or other governmental agency prior to the proposed sale of all Registrable Securities to be sold thereunder, (ii) the method of disposition is a firm commitment underwritten public offering would have and, as a material adverse effect on the Company, or during the pendency result of a transaction that the Board of Directors an exercise of the Company determines underwriters’ cutback provisions in good faith is material Section 2.3(b), less than seventy-five (75%) of the Registrable Securities requested to the Company. As used herein, the “Permitted Delay Period” be included therein have been sold pursuant to this Section 2(a) shall be a period of days of up to 90 daysthereto; provided, however, that if such registration is the second registration on a Long-Form Registration Statement of the applicable Initiating Holder(s) as described in no event Section 2.1(c) hereof, then such percentage shall be ninety (90%), or (iii) if the Company delay shall have withdrawn or prematurely terminated a Registration Statement as set forth in Section 2.5.
(e) The Registrable Securities covered by any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary Statement demanded under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration 2.1 shall be considered Expenses for distributed by means of a firm commitment underwritten offering unless otherwise agreed to in writing by the purpose of calculating Excess Expenses pursuant to Section 7 hereofSumma Investor(s).
Appears in 1 contract
Sources: Registration Rights Agreement (Olink Holding AB (Publ))
Demand Registrations. Apollo may, at (a) At any time during and from time to time, the Term of this Agreement, by written notice Summa Investor(s) (a the “Demand NoticeInitiating Holder(s)”) delivered to the Company, require may request in writing that the Company to register under the Securities Act all or any portion of the Registrable Securities held by the Initiating Holder(s); provided that no Registration Statement need be filed with the Commission (for the avoidance of doubt, this proviso excludes any Registration Statement confidentially submitted to the Commission) prior to the expiration of any “lock-up agreement” entered into with an underwriter in connection with the IPO (unless waived by such underwriter). Upon receipt of such written request, which shall specify the intended method of distribution thereof, the Company shall as soon as possible and in any case within three (3) days deliver notice (any such written notice, a “Demand Notice” and any such registration, a “Demand Registration”) thereof to all Holders (other than the Initiating Holder(s)), if any, who shall then have three (3) Business Days to notify the Company in writing of their desire to be included in such registration. If no request for inclusion from a Holder is received within the specified time, such Holder shall have no further right to participate in such Demand Registration. A Holder who is, or part who is controlled by any person who is, an employee of the Registrable Common Stock on behalf of Apollo and any of Company or its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares Subsidiaries may participate in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify 2.1(a) within the number of shares of Registrable Common Stock to be registered Restrictive Period, only if and the intended methods of disposition thereof. Notwithstanding anything to the contrary in extent the foregoing:
aggregate of (i) the Registrable Securities such Holder will include in such Demand Registration and (ii) the Common Shares such Holder has sold, transferred, assigned, distributed or otherwise conveyed prior to such Demand Registration does not exceed the Maximum Amount of Shares (and where the Initiating Holder(s) shall have the full and absolute discretion to determine the extent by which any cutbacks are required and which Holders will be affected), unless otherwise agreed by the Initiating Holder(s). Subject to the provisions of Section 2.5 below, the Company shall use its reasonable best efforts to file a registration statement for such intended method of distribution, as promptly as practicable, but not later than (x) sixty (60) days after such Demand Notice in the case of a registration with a Long-Form Registration Statement and (y) thirty (30) days after such Demand Notice in the case of a registration with a Short-Form Registration Statement, and in each case 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 (subject to the proviso of the first sentence of this Section 2.1(a)).
(b) Notwithstanding the foregoing, the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to registration under this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of 2.1 before ninety (A90) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such any other previously effective Registration Statement. Notwithstanding the foregoingStatement for an underwritten offering of securities pursuant to a Company-initiated registration (other than pursuant to a registration statement on Form ▇-▇, the Company may delay ▇-▇ or S-8) or a Demand Registration for the Permitted Delay Period Piggy-Back Underwritten Offering (as defined below) ), provided, however, that nothing in this clause shall derogate from the date Company’s obligations under Section 2.4 hereof.
(c) The Company shall be obligated to effect an unlimited number of registrations for the Company first gives Apollo notice of such delay by written notice Summa Investor(s) under this Section 2.1.
(d) A registration shall not be counted as “effected” if (i) after effectiveness, the Registration Statement becomes subject to Apollo stating the reason for and the extent of any such delaystop order, if the Board of Directors injunction or other order of the Company determines in good faith that proceeding with Commission or other governmental agency prior to the proposed sale of all Registrable Securities to be sold thereunder, (ii) the method of disposition is a firm commitment underwritten public offering would have and, as a material adverse effect on the Company, or during the pendency result of a transaction that the Board of Directors an exercise of the Company determines underwriters’ cutback provisions in good faith is material Section 2.3(b), less than seventy-five (75%) of the Registrable Securities requested to the Company. As used herein, the “Permitted Delay Period” be included therein have been sold pursuant to this Section 2(a) shall be a period of days of up to 90 daysthereto; provided, however, that if such registration is the second registration on a Long-Form Registration Statement of the applicable Initiating Holder(s) as described in no event Section 2.1(c) hereof, then such percentage shall be ninety (90%), or (iii) if the Company delay shall have withdrawn or prematurely terminated a Registration Statement as set forth in Section 2.5.
(e) The Registrable Securities covered by any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary Statement demanded under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration 2.1 shall be considered Expenses for distributed by means of a firm commitment underwritten offering unless otherwise agreed to in writing by the purpose of calculating Excess Expenses pursuant to Section 7 hereofSumma Investor(s).
Appears in 1 contract
Sources: Registration Rights Agreement (Olink Holding AB (Publ))
Demand Registrations. Apollo may(a) Subject to the terms and conditions hereof, at (x) solely during any time during period that the Term Company is then ineligible under Applicable Law to register Registrable Securities on Form S-3, or if the Company is so eligible but has failed to comply with its obligations under Section 4.3 or (y) following the expiration of this Agreementthe Company’s obligation to keep the Shelf Registration Statement continuously effective pursuant to Section 4.3(c), by 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 notice requests of the Company (each, a “Demand NoticeDemand”) delivered to the Company, require the Company to register for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Shareholders that equals or is greater than the Registrable Amount (a “Demand Registration” and such registration statement, a “Demand Registration Statement”) all or part ). Thereupon, the Company shall, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable (including reasonable best efforts to effect the registration no less than 30 days after receipt of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify Demand) under the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoingSecurities Act of:
(i) the Registrable Securities which the Company shall not be required has been so requested to effect more than two Demand Registrations during register by the term Requesting Shareholders for disposition in accordance with the intended method of this Agreementdisposition stated in such Demand;
(ii) if all other Registrable Securities which the Company has previously effected an Effected Demand Registration been requested to register pursuant to Section 4.1(b), but subject to Section 4.1(g); and
(iii) all shares of Company Common Stock which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 24.1, but subject to Section 4.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and 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 five (5) days after receipt of a Demand, the Company shall not be 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 five (5) days after the Company’s notice required to file another Registration Statement pursuant to by this paragraph has been given, subject to
Section 4.1 (g). Each such written request shall comply with the requirements of a Demand as set forth in this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected 4.1(b).
(c) A Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required deemed to file another have been effected (i) unless the Demand Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier with respect thereto has become effective and has remained effective for a period of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares hundred twenty (120) 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 Common Stock; andSecurities refrain from selling any securities included in such registration statement at the request of the Company or the lead managing underwriter(s) pursuant to the provisions of this Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to one hundred twenty (120) days after effectiveness, to any stop order, injunction or other order or requirement of the Commission or other Governmental Authority, other than by reason of any act or omission by the applicable Selling Shareholders.
(ivd) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares Demand Registrations shall be on such appropriate registration form of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective Commission as shall be selected by the SEC, Company and reasonably acceptable to the Requesting Shareholders.
(e) The Company shall not be obligated to file (i) subject to Section 4.1(c), maintain the effectiveness of a Demand Registration Statement before registration statement under the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect Securities Act filed pursuant to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for a period longer than one hundred eighty (180) days or (ii) effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Demand Shareholders were offered “piggyback” rights pursuant to Section 4.2 (subject to Section 4.2(b)) and at least fifty percent (50%) of the Permitted Delay Period number of Registrable Securities requested by such Demand Shareholders to be included in such Demand Registration were included, (as defined belowB) from within ninety (90) days of the date completion of any other Demand Registration (including, for the avoidance of doubt, any Underwritten Offering pursuant to any Shelf Registration Statement) or (C) if, in the Company’s reasonable judgment, it is not feasible for the Company first gives Apollo notice to proceed with the Demand Registration because of such delay by written notice to Apollo stating the reason for and the extent unavailability of any such delay, if the Board of Directors audited or other required financial statements of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 daysany other Person; provided, however, in no event shall that the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the use its reasonable best efforts to obtain such financial statements as promptly as practicable.
(f) The Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by shall be entitled to (i) postpone (upon written notice to the Demand Shareholders) the filing or the effectiveness of a registration statement for any Demand Registration, (ii) cause any Demand Registration Statement to be withdrawn and its effectiveness terminated and (iii) suspend the use of the prospectus forming the part of any registration statement, in each case in the event of a Blackout Period until the expiration of the applicable Blackout Period. In the event of a Blackout Period under clause (ii) of the definition thereof, the Company 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 Company, the conditions described in clause (ii) of the definition of Blackout Period are met. If Apollo withdraws its Such certificate shall contain an approximation of the anticipated delay. Upon notice by the Company to the Demand Notice Shareholders of any such determination, each Demand Shareholder covenants that, subject to Applicable Law, it shall keep the fact of any such notice strictly confidential, and, in the case of a Blackout Period pursuant to this Section 2(aclause (ii)(y) during of the pendency 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 delaynotice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration Statement, each prospectus included therein, and any amendment or supplement thereto by it and any of its Affiliates for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall not constitute be earlier terminated in writing by the Company) and, if so directed in writing by the Company, will deliver to the Company any copies then in the Demand Shareholder’s possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice.
(g) If, in connection with a Demand Registration under this Agreement and shall not reduce that involves an Underwritten Offering, the number lead managing underwriter(s) advise(s) the Company that, in its (their) good faith opinion, the inclusion of Demand Registrations to which Apollo is otherwise entitled and, none all of the costs and expenses incurred by Apollo or the Company securities sought to be registered in connection with such withdrawn Demand Registration would adversely affect the success thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Demand Shareholders, which, in the good faith opinion of the lead managing underwriter(s), can be sold without adversely affecting the success thereof, pro rata among such Demand Shareholders on the basis of the number of such Registrable Securities requested to be included by such Demand Shareholders; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or 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 considered Expenses for reasonably acceptable to the purpose of calculating Excess Expenses pursuant Company (such acceptance not to Section 7 hereofbe unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Sources: Stockholders Agreement (Atlas Air Worldwide Holdings Inc)
Demand Registrations. Apollo may, (a) If the Company shall receive from (i) New Mountain at any time during after the Term closing of this Agreementthe IPO or (ii) any other Holder or group of Holders holding Registrable Securities at any time beginning on the first (1st) anniversary of the closing of the IPO, by a written notice request that the Company file a registration statement with respect to all or a portion of the Registrable Securities (a “Demand Registration Request,” and the registration so requested is referred to herein as a “Demand Registration,” and the sender(s) of such request pursuant to this Agreement shall be known as the “Initiating Holder(s)”), then the Company shall, within 10 Business Days of the receipt thereof, give written notice (the “Demand Exercise Notice”) delivered of such request to all other Holders, and subject to the Companylimitations of this Section 2.1, require use its reasonable best efforts to effect, as soon as practicable, the Company to register registration under the Securities Act (including, without limitation, by means of a “Demand Registration”shelf registration pursuant to Rule 415 thereunder if so requested and if the Company is then eligible to use such a registration) of all Registrable Securities that New Mountain or part the Holders request to be registered.
(b) Notwithstanding the foregoing to the contrary, if during the twelve (12)-month period following the first (1st) anniversary of the Registrable Common Stock on behalf closing of Apollo and any the IPO, the demand for registration is made pursuant to clause (ii) of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Section 2.1(a) above, the Board may, within five Business Days of the receipt by the Company of the Demand Registration Request, request that such demand be deferred for purposes a period not to exceed the earlier of (a) ninety (90) days following the date of such demand (which ninety (90)-day period may be extended to one hundred and fifty (150) days by the Board), or (b) the second (2nd) anniversary of the closing of the IPO, and upon such request the subject demand shall be automatically deemed to have been deferred to such earlier date unless withdrawn by the Initiating Holder(s) (and provided that the Company shall pay all expenses, if any, of any such withdrawn demand registration); provided that (x) New Mountain may not make any demand for registration during the period in which the demand of such Initiating Holders is deferred pursuant to this Section 2. All requests for paragraph, and (y) the right provided to the Board in this paragraph may not be exercised by the Board more than once in such twelve (12)-month period.
(c) There is no limitation on the number of Demand Registrations made pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) 2.1 which the Company shall not be required is obligated to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SECeffect. However, the Company shall not be obligated to file take any action to effect any Demand Registration:
(i) within 30 days after a Demand Registration Statement pursuant to this Section 2.1 that has been declared or ordered effective;
(ii) during the period any applicable restrictions are still in effect pursuant to any Lock-Up Agreement that have not been waived (or are not reasonably expected to be waived) by the underwriters party thereto;
(iii) where the anticipated offering price, before the earlier any underwriting discounts or commissions and any offering-related expenses, is equal to or less than $20,000,000, unless such registration would represent all of the date on which remaining Registrable Securities owned by the lock-up agreement, Initiating Holder(s);
(iv) if any, that Apollo has entered into with respect the Company shall furnish to such Holders a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board (after consultation with external legal counsel), any registration of Registrable Securities should not be made or continued (or sales under a shelf registration statement should be suspended) because (i) such registration (or continued sales under a shelf registration statement) would materially and adversely interfere with any existing or potential material financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Company or any of its subsidiaries or (ii) the Company is in possession of material non-public information, the premature disclosure of which has been determined by the Board to not be in the Company’s best interests (in either case, a “Valid Business Reason”), then (x) the Company may postpone filing a registration statement relating to a Demand Registration Statement expiresRequest or suspend sales under an existing shelf registration statement until five Business Days after such Valid Business Reason no longer exists, or the date that is 180 but in no event for more than 90 days after the effective date of such the Board determines a Valid Business Reason exists and (y) in the case a registration statement has been filed relating to a Demand Registration Statement. Notwithstanding Request, if the foregoingValid Business Reason has not resulted from actions taken by the Company, the Company may delay a Demand Registration cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until five Business Days after such Valid Business Reason no longer exists, but in no event for the Permitted Delay Period (as defined below) from more than 90 days after the date the Board determines a Valid Business Reason exists; and the Company first gives Apollo notice of such delay by shall give written notice to Apollo stating the reason for Participating Holders of its determination to postpone or withdraw a registration statement or suspend sales under a shelf registration statement and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction fact that the Board of Directors of Valid Business Reason for such postponement, withdrawal or suspension no longer exists, in each case, promptly after the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 daysoccurrence thereof; provided, however, in no event shall that the Company delay shall not defer its obligation in this manner for more than (i) 60 days in any Demand Registration 90 day period or (ii) for a longer period than periods exceeding, in the Board of Directors determines aggregate, 90 days in good faith is necessary under the existing circumstancesany 12 month period; provided further that or
(v) in no event shall any particular jurisdiction in which the Company delay would be required to qualify to do business or to execute a Demand Registration more than oncegeneral consent to service of process in effecting such registration, qualification or compliance. If the Company delays shall give any notice of postponement, withdrawal or suspension of any registration statement pursuant to clause 2.1(c)(iv) of this Section 2.1(c), the Company shall not, during the period of postponement, withdrawal or suspension, register any Company Shares, other than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in effect). Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw any registration statement pursuant to clause 2.1(c)(iv) of this Section 2.1(c), such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement and, if so directed by the Company, will deliver to the Company (at the Company’s expense) all copies, other than permanent file copies, then in such Holder’s possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice. If the Company shall have withdrawn or prematurely terminated a registration statement filed pursuant to a Demand Registration (whether pursuant to clause 2.1(c)(iv) of this Section 2.1(c) or as a result of any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement, the Company shall, not later than five Business Days after the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event later than 90 days after the date of the postponement or withdrawal), use its reasonable best efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with Section 2.1 (unless the Initiating Holders shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of this Agreement), and such registration shall not be withdrawn or postponed pursuant to clause 2.1(c)(iv) of this Section 2.1(c).
(i) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities which shall have made a written request to the Company for inclusion in such registration pursuant to Section 2.2 (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Participating Holder) within ten Business Days after the receipt of the Demand Exercise Notice.
(ii) The Company shall, as expeditiously as possible, but subject to the limitations set forth in this Section 2.1, use its reasonable best efforts to (x) effect such registration under the Securities Act (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the Securities Act if so requested and if the Company is then eligible to use such a registration) of the Registrable Securities which the Company has been so requested to register, for distribution in accordance with such intended method of distribution and (y) if requested by the Majority Participating Holders or, in the case where the Initiating Holder is New Mountain, New Mountain, obtain acceleration of the effective date of the registration statement relating to such registration.
(e) In connection with any Demand Registration, Apollo may withdraw its Demand Notice during the pendency Initiating Holder shall have the right to designate the lead managing underwriter (any lead managing underwriter for the purposes of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delayAgreement, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company “Manager”) in connection with such withdrawn Demand Registration registration and each other managing underwriter for such registration.
(f) If so requested by the Initiating Holder(s), the Company (together with all Holders proposing to distribute their securities through such underwriting) shall be considered Expenses enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the purpose Initiating Holder in its sole discretion.
(g) Any Holder that intends to sell Registrable Securities by means of calculating Excess Expenses a shelf registration pursuant to Section 7 hereofRule 415 thereunder shall give the Company two days’ prior notice of any such sale.
Appears in 1 contract
Sources: Registration Rights Agreement (Signify Health, Inc.)
Demand Registrations. Apollo may, at any time during the Term of this Agreement, by written notice (a “Demand Notice”a) delivered to the Company, require If (i) the Company to register under the Securities Act shall receive a written request (a “Demand Registration”) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations specifying that it is being made pursuant to this Section 2 shall specify 7) from one or more Holders that the number Company file a registration statement on Form S-3 (or any successor form to Form S-3 regardless of shares its designation) (or, if the Company is not then a registrant entitled at such time to use Form S-3 (or any form to Form S-3 regardless of its designation) to register such shares, a Form S-1 (or any successor form to Form S-1 regardless of designation) for a public offering of Registrable Common Stock Shares (whether by underwriting or otherwise) the reasonable anticipated aggregate price to the public of which would equal or exceed $3,000,000 (a “Demand Registration Request”), then the Company shall promptly notify all other Holders of such request and shall use its reasonable best efforts to cause all Registrable Shares that Holders, within fifteen (15) days after receipt of any such written notice, have requested be registered to be registered and the intended methods as soon as reasonably practicable thereafter. Table of disposition thereof. Contents
(b) Notwithstanding anything to the contrary in the foregoing:
, (i) the Company shall not be required obligated to effect more than two Demand Registrations a registration pursuant to Section 7(a) during the term period starting with the date ninety (90) days prior to the Company’s estimated date of this Agreement;
filing of, and ending on a date ninety (ii90) if days following the effective date of, a registration statement pertaining to an underwritten public offering of securities for the account of the Company, provided, that the Company has previously effected is actively employing in good faith its commercially reasonable efforts to cause such registration statement to become effective and that the Company’s estimate of the date of filing such registration statement is made in good faith; provided, however, that the Company shall file a registration statement upon the request of one or more Holders pursuant to Section 7(a) after ninety (90) days have elapsed after the estimated date of filing of such registration statement pertaining to an Effected Demand Registration underwritten public offering of securities for the account of the Company; and provided, further, that the Company shall only be permitted to delay pursuant to this Section 2, 7(b)(i) the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the filing of a registration statement requested to be filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration one or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights more Holders pursuant to Section 3 hereof, and 7(a) once in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggyany 12-Back Registration when such Registration Statement is declared effective by the SEC, month period; (ii) the Company shall not be obligated to effect (x) more than three registrations pursuant to Section 7(a) on Form S-1 (or any successor form) and (y) more than two registrations pursuant to Section 7(a) in any twelve month period, and (iii) if the Company shall furnish to the Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed (a “Valid Business Reason”) in the near future, then the Company’s obligation to use its reasonable best efforts to file a Demand Registration Statement before registration statement shall be deferred until such Valid Business Reason no longer exists; provided that Company may exercise its right to delay filing a registration statement pursuant to this Section 7(b)(iii) or to suspend the earlier use of a prospectus included in an effective registration statement pursuant to Section 13(f) for an aggregate period not to exceed ninety (90) days in any 12-month period. The Company shall give notice of its determination to delay or suspend a registration statement and of the date on which fact that the lock-up agreementValid Business Reason for such delay or suspension no longer exists, if anyin each case, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days promptly after the effective date of such occurrence thereof.
(c) If any registration statement pursuant to this Section 7 or any Subsequent Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from ceases to be effective for any reason at any time during the date Effectiveness Period, the Company first gives Apollo notice shall use reasonable best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within forty-five (45) days of such delay by written notice cessation of effectiveness amend such registration statement in a manner to Apollo stating obtain the reason for and the extent of any such delay, if the Board of Directors withdrawal of the order suspending the effectiveness thereof, or file an additional registration statement, covering all of the Registrable Shares covered by such prior registration statement (a “Subsequent Registration”). If a Subsequent Registration is filed, the Company determines in good faith that proceeding with shall use reasonable best efforts to cause the proposed offering would have Subsequent Registration to be declared effective under the Securities Act as soon as practicable after such filing and to keep such Subsequent Registration continuously effective for the remainder of the Effectiveness Period plus the number of days during which the registration statement replaced by the Subsequent Registration ceased to be effective. Notwithstanding anything to the contrary contained herein the filing by the Company of a material adverse effect Subsequent Registration shall not be counted for purposes of limitations on the Company, or during the pendency number of a transaction that the Board of Directors of registration statements the Company determines in good faith is material required to the Company. As used herein, the “Permitted Delay Period” effect pursuant to this Section 2(a7.
(d) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays files any shelf registration statement for the Demand Registrationbenefit of the holders of any of its securities other than the Holders, Apollo the Company agrees that it shall include in such registration statement such disclosures as may withdraw its Demand Notice during the pendency of such delay be required by written notice Rule 430B (referring to the Company. If Apollo withdraws its Demand Notice pursuant unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders) in order to ensure that the Holders may be added to such shelf registration statement, if the Company so elects, at a later time through the filing of a prospectus supplement rather than a post-effective amendment.
(e) The Holders’ rights to registration under this Section 2(a) during the pendency 7 are in addition to, and not in lieu of, their rights to registration under Section 2 of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number Agreement. Table of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereof.Contents
Appears in 1 contract
Demand Registrations. Apollo may(a) Following the date that is six months after the consummation of an Initial Public Offering by the Company of the Common Stock, at any time during the Term of this AgreementHolders shall have the right to request, by written notice given to the Company (a the “Demand Notice”) delivered to the Company), require the Company to register under and in accordance with the provisions of the Securities Act all or part of the Registrable Securities designated by such Holders; provided, that the aggregate amount of Registrable Securities requested to be registered pursuant to any such Demand Notice and pursuant to all Demand Notices received pursuant to the following sentence shall be the greater of (x) 5% of the outstanding shares of Common Stock and (y) $50.0 million. Upon receipt of any such Demand Notice, the Company will promptly notify all other Holders of the receipt of such Demand Notice and allow them the opportunity to include Registrable Securities held by them in the proposed registration by submitting their own Demand Notice (except that any such notice shall qualify as a Demand Notice without regard to the amount requested to be registered). The Holders as a group shall be entitled to one Demand Registration pursuant to this Section 2(a) unless any such Demand Registration did not become effective or was not maintained effective for a period (whether or not continuous) of at least 180 days or such shorter period which shall terminate when all the Registrable Securities covered by such Demand Registration have been disposed of pursuant thereto, in which case the Holders, as a group, will be entitled, in each case, to one additional Demand Registration pursuant hereto.
(b) As soon as practicable, but in any event within 90 days after the date on which the Company first receives a Demand Notice pursuant to Section 2(a) hereof, the Company shall file with the Commission a Registration Statement on the appropriate form for the registration and sale of the total number of Registrable Securities specified in such Demand Notices in accordance with the intended method or methods of distribution specified by the Holders in such Demand Notices (a “Demand Registration”) all ), subject to the provisions of Section 2(d). The Company shall use its commercially reasonable efforts to cause such Registration Statement to become or part to be declared effective by the Commission as soon as practicable, but in any event within 120 days after the filing of such Registration Statement, subject to the Registrable Common Stock provisions of Section 2(d). If the Company receives written notice from a Holder after the date on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo such Registration Statement has become effective that such Holder desires to include shares additional Registrable Securities in a Piggyback such Registration Statement, the Company shall use its commercially reasonable efforts to so include such additional Registrable Securities as promptly as possible by filing an additional registration statement pursuant to Rule 462(b) under the Securities Act or any similar rule then in effect, which registration statement shall not constitute a Demand Registration for purposes be counted towards determining the number of this Section 2. All requests for Demand Registrations made to which the Holders are entitled pursuant to Section 2(a).
(c) Upon the occurrence of any event that would cause the Registration Statement (i) to contain a material misstatement or omission or (ii) to be not effective and usable for resale of Registrable Securities during the period that such Registration Statement is required to be effective and usable, the Company shall promptly file an amendment to the Registration Statement, in the case of clause (i), correcting any such misstatement or omission and, in the case of either clause (i) or (ii), use its commercially reasonable efforts to cause such amendment to be declared effective and such Registration Statement to become usable as soon as practicable thereafter.
(d) The Company agrees to use its commercially reasonable efforts to keep any Registration Statement filed pursuant to this Section 2 shall specify continuously effective and usable for the number of shares sale of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 Securities until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (Ai) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the date on which such Registration Statement became or was declared effective date of by the Commission and (ii) such time as all the Registrable Securities covered by such Registration Statement have been sold pursuant to such Registration Statement, in either case as such period may be extended pursuant to this Section 2. Notwithstanding the foregoing, the Company may shall have the right to delay a Demand the filing of any Registration for the Permitted Delay Period (as defined below) from the date Statement otherwise required to be prepared and filed by the Company first gives Apollo notice of such delay by written notice pursuant to Apollo stating this Section 2, or to suspend the reason for and the extent use of any such delayRegistration Statement, for a period not in excess of 45 days (a “Delay Period”) if a majority of the Board of Directors of the Company determines in their reasonable good faith judgment that proceeding with the proposed offering registration and distribution of the Registrable Securities covered or to be covered by such Registration Statement (i) is not in the best interests of the Company, or would have a material adverse effect on the CompanyCompany or, any proposed or during pending financing, acquisition, disposition, merger or other material corporate transaction involving the pendency Company or any of a transaction its subsidiaries, (ii) would require disclosure of any other material corporate development that the Board Company is not otherwise required to disclose or (iii) the prospectus contained in the Registration Statement contains an untrue statement of Directors material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company determines in good faith is material to will promptly give the Company. As used herein, Holders written notice of such determination and an approximation of the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 daysthe anticipated delay; provided, however, that the aggregate number of days included in no event all Delay Periods during any consecutive 12 months shall not exceed the aggregate of (x) 90 days minus (y) the number of days occurring during all Interruption Periods (as defined in Section 6(o) hereof) during such consecutive 12 months. Each Holder agrees to cease all public disposition efforts under such Registration Statement with respect to Registrable Securities held by such Holder immediately upon receipt of notice of the beginning of any Delay Period. The Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by provide written notice to the CompanyHolders of the end of each Delay Period. If Apollo withdraws its Demand Notice The Company shall not be entitled to initiate a Delay Period unless it shall concurrently prohibit sales by other security holders of the Company under registration statements covering securities held by such other security holders and sales by executive officers of the Company during such period. The time period for which the Company is required to maintain the effectiveness of a Registration Statement referred to above shall be extended by the aggregate number of days of all Delay Periods and Interruption Periods affecting such Registration, and such period and any extension thereof is hereinafter referred to as the “Effectiveness Period.”
(e) The Company shall not include any securities that are not Registrable Securities in any Registration Statement filed pursuant to this Section 2(a2 without the prior written consent of Selling Holders holding a Majority of the Registrable Securities covered by such Registration Statement. The Company shall not enter into any agreement granting any person other than the Holders (an “Other Security Holder”) during piggyback registration rights that would permit the pendency Company securities of such delayOther Security Holder (or such Other Security Holder’s successors or assigns) to be included on a Registration Statement filed pursuant to this Section 2 or granting any Other Security Holder piggyback rights to include such Other Security Holder’s securities, in any registration in which the Holders have the right to include Registrable Securities, on a priority basis more favorable to such Other Security Holder than is provided pursuant to the first paragraph of Section 3(b). There are no agreements granting any Other Security Holder the right to include securities in any registration pursuant to this Section 2.
(f) If (x) the Selling Holders holding a Majority of the Registrable Securities covered by such Registration Statement, or the Majority Holders, as applicable, consent to the Company or any such Other Security Holder (or such Other Security Holder’s successors or assigns) having the right to have Company securities included on a Registration Statement filed pursuant to this Section 2 and (y) the managing underwriter(s) of the offering advise the Company in writing that in their good faith judgment the aggregate amount of securities, including Registrable Securities, of the Company that the Company, all Holders and all Other Security Holders have requested to be included in such registration exceeds the maximum number of securities, including Registrable Securities, that can reasonably be expected to be sold in such offering without adversely affecting the success of the offering, then the Company will include the Registrable Securities and such other securities in the Registration Statement filed pursuant to this Section 2 in the following order of priority:
(i) first, the Registrable Securities requested to be included in such registration by the Holders pro rata among such Holders on the basis of the aggregate principal amount of Registrable Securities requested to be included by each such Holder,
(ii) second, if no Registrable Securities were excluded pursuant to clause (i) of this Section 2(f), securities other than Registrable Securities requested to be included in such registration by the Holders pro rata among such Holders on the basis of the aggregate amount of such other securities of the Company requested to be included by all such Holders,
(iii) third, if no Registrable Securities or other securities requested to be included by the Holders were excluded pursuant to clause (i) or (ii) of this Section 2(f) and subject to Section 2(e), securities requested to be included in such registration by Other Security Holders pro rata among such Other Security Holders on the basis of the aggregate amount of such securities requested to be included by all such Other Security Holders, and
(iv) fourth, the securities the Company proposes to sell; provided, that if such registration contemplates an “over-allotment option” on the part of underwriters, to the extent such over-allotment option is exercised and Holders were excluded from registering any Registrable Securities or other securities pursuant to the priority provisions of this Section 2(f), then the over-allotment option shall be exercised first with respect to such Registrable Securities and second with respect to such other securities of the Holders (subject to Section 2(e), in each case, to the extent of such exclusion.
(g) Selling Holders holding a Majority of the Registrable Securities to be included in a Demand Registration pursuant to this Section 2 may, at any time prior to the effective date of the Registration Statement in respect thereof, revoke such request by providing a written notice to the Company to such effect; provided, that such Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce be counted towards determining the number of Demand Registrations to which Apollo is otherwise the Holders are entitled and, none pursuant to Section 2(b) unless the Holders agree to pay the out of the costs and pocket expenses incurred by Apollo or the Company in connection with such withdrawn revoked Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofRegistration.
Appears in 1 contract
Sources: Securityholders' Agreement (Revel Entertainment Group, LLC)
Demand Registrations. Apollo may(i) Subject to the provisions set forth in this Section 2(a)(i), at any time during from and after the Term of this Agreementdate six (6) months after the Closing Date, any Holder or Holders may elect, by giving written notice (a “Demand Notice”) delivered thereof to the Company, to require the Company to use its reasonable best efforts to register all or a portion of the Registrable Securities of such Holder or Holders (each, an "Initiating Holder," and, collectively, the "Initiating Holders") under the Securities Act (a “Demand Registration”) all or part of Act; provided, however, that the Company shall be obligated to -------- ------- register the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section 2. All requests for Demand Registrations made pursuant to this Section 2 shall specify Securities upon such demand only if the number of shares of Registrable Common Stock Securities to be so registered and the intended methods of disposition thereof. Notwithstanding anything is at least equal to the contrary lesser of (A) 500,000 shares (or, in the foregoing:
case of a demand by TMCT Ventures, L.P., 300,000 shares) or (iB) such number of shares as 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 $8 million (or, in the case of a demand by TMCT Ventures, L.P., $2.4 million). Promptly following such demand, the Company shall not (1) give notice to each other Holder of Registrable Securities of such demand, which notice shall set forth the identity of the Initiating Holders, and (2) 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 the Initiating Holders of, the Registrable Securities to be so registered. Any other Holder of Registrable Securities may elect, by giving written notice to such effect to the Company no later than 10 business days after the Company shall have given the notice referred to in clause (1) of the preceding sentence, to have all or a portion of such Holder's Registrable Securities included in such registration, and such Holder shall thereby become an Initiating Holder with respect to such registration for all purposes hereunder (it being understood that only the Holder actually making the demand under this Section 2(a)(i) shall be deemed to have used one of its demand registration rights). The Company shall be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration cause to become effective pursuant to this Section 2(a) no more than (i) two (2) registration statements pursuant to demands initiated by TMCT Ventures, L.P. or its successors and assigns, (ii) four (4) registration statements pursuant to demands initiated by SOFTBANK or its successors and assigns and (iii) three (3) registration statements pursuant to demands initiated by ITH or its successors and assigns; provided, the Company shall not be required to file another Registration Statement pursuant cause to this Section 2 until 180 days have elapsed from the date on which the become -------- effective no more than one registration statement filed with in any six month period. Notwithstanding the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SECforegoing, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, register Registrable Securities upon any demand pursuant to this Section 2(a)(i) if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is (1) fewer than 180 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 basis, but only if and to the extent that (x) the underwriting agreement entered into in connection with any such Registration Statement. Notwithstanding offering expressly prohibited registration of Registrable Securities upon such demand 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 foregoing12 months immediately preceding the commencement of such 180 day period, unless any Holders having made demands 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.
(ii) If, in connection with a registration of Registrable Securities pursuant to Section 2(a)(i) hereof, any managing underwriter shall advise the Initiating Holders in writing that, in its opinion, the inclusion in the registration statement of some or all of the Registrable Securities sought to be registered by the Initiating Holders creates a substantial risk that the price per unit that such Initiating Holders will derive from such registration will be materially and adversely affected or that the number of Registrable Securities sought to be registered is too large a number to be reasonably sold, the Company may delay a will include in such registration statement such number of Registrable Securities as the Initiating Holders are so advised can reasonably be sold in such offering, or can be sold without such an effect (the "Demand Registration for Maximum Number"), as follows and in the Permitted Delay Period following order of priority: (A) first, such number of Registrable Securities as defined belowthe Initiating Holders shall have requested up to the Demand Maximum Number, allocated pro rata and without any --- ---- priority as between the Initiating Holders, in proportion to the number of Registrable Securities which each Initiating Holder owns or has the right to acquire relative to the total number of Registrable Securities which all Initiating Holders own or have the right to acquire, and (B) from second, if and to the date extent the number of Registrable Shares to be registered under clause (A) is less than the Demand Maximum Number, and only to the extent the prior express written consent of the Initiating Holders is obtained in accordance with the following sentence, such number of securities of the Company first gives Apollo notice and any other person which, in the aggregate, when added to the number of Registrable Securities to be registered under clause (A), equals the Demand Maximum Number. In the event of any registration of Registrable Securities pursuant to Section 2(a)(i) hereof, the Company shall not, without the prior express written consent of the Initiating Holders owning a majority of such delay by written notice to Apollo stating Registrable Securities, cause or permit any other securities of the reason for and the extent Company or of any other person (whether such delaysecurities are to be issued by the Company, if 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.
(iii) In the event that, following any demand pursuant to Section 2(a)(i) hereof but prior to the filing of a registration statement in respect of such demand, (A) the Board of Directors of the Company determines Company, in its reasonable judgment and in good faith faith, resolves that proceeding the filing of such registration statement and the offering of Registrable Securities pursuant thereto would materially interfere with the proposed offering would have a material adverse effect on any significant acquisition, corporate reorganization or other similar transaction involving the Company, or during the pendency of a transaction that the Board of Directors of and (B) the Company determines in good faith is material to gives the Company. As used hereinInitiating Holders written notice of such determination (which notice shall include a copy of such resolution), the “Permitted Delay Period” pursuant Company shall, notwithstanding the provisions of Section 2(a)(i) hereof, be entitled to this Section 2(a) shall be a period of days of postpone for up to 90 daysdays the filing of any registration statement otherwise required to be prepared and filed by it pursuant to Section 2(a)(i) hereof; provided, however, in that no event shall the Company delay such -------- ------- postponement may be effected if any Demand Registration for other postponement of a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice registration pursuant to this Section 2(a) 2 was in effect during the pendency 12 months immediately preceding the commencement of such delaypostponement, unless any Holders having made demands during the Demand Registration previous postponement shall not constitute a Demand Registration under this Agreement and shall not reduce have had the number of Demand Registrations opportunity to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses register their Registrable Securities pursuant to Section 7 hereofan effective registration statement prior to the current postponement.
Appears in 1 contract
Demand Registrations. Apollo may, at (i) At any time during following at least one hundred eighty (180) days after the Term effectiveness of this Agreementthe registration statement on Form S-1 for the initial Public Offering, by an Investor Shareholder may deliver a written notice request to the Company (each, a “Demand NoticeRegistration Request”) delivered to the Company, require that the Company to register effect a registration under the Securities Act covering all or part of such Registrable Securities as are specified in such Demand Registration Request and specifying the intended method or methods of disposition thereof (a “Demand Registration”) all or part ); provided, that, in each case, the anticipated aggregate offering price, net of the Registrable Common Stock on behalf of Apollo underwriting discounts and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall commissions, exceeds $30,000,000 and not constitute a Demand Registration for purposes of this Section 2. All requests for more than three Demand Registrations made on a long-form registration statement (such as Form S-1 and successor forms) in total by all Investor Shareholders may be effected pursuant to this Section 2 2(a)(i). Notwithstanding anything herein to the contrary, unless the Demand Registration is withdrawn pursuant to Section 2(a)(iv), a registration will not count as one of such three Demand Registrations pursuant to this Section 2(a)(i) unless at least 75% of the Registrable Securities specified in the applicable Demand Registration Request have been sold in connection with such request.
(ii) Upon the Company’s receipt of a Demand Registration Request, the Company shall specify promptly (but in any event within five (5) Business Days) notify in writing all Holders, other than the initiating Investor Shareholder, of receipt of such Demand Registration Request and the intended method or methods of disposition of Registrable Securities pursuant to such Demand Registration. Each Holder, other than such initiating Investor Shareholder, may elect (by written notice sent to the Company within ten (10) Business Days after the date of the aforementioned notice from the Company) to have Registrable Securities included in such Demand Registration (on the same terms and pursuant to the same intended method or methods of disposition as are set forth in such Demand Registration Request) pursuant to this Section 2(a).
(iii) The Company, subject to Section 7, shall use its commercially reasonable efforts to file the form and other documents necessary to effect each Demand Registration with the Commission within sixty (60) days after the Company’s receipt of each Demand Registration Request, shall thereupon include in such filing the number of shares of Registrable Common Stock Securities for which registration is so requested, subject to be registered Section 2(c)(i), and shall use its commercially reasonable efforts to effect the intended methods registration under the Securities Act of disposition thereofsuch Registrable Securities. Notwithstanding anything The initiating Investor Shareholder and any other Holder that elects to have its Registrable Securities included in such Demand Registration agrees to furnish to the contrary in Company all information with respect to such Holder as is necessary to make any information previously furnished to the foregoing:Company by such Holder not misleading.
(iiv) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company Any Investor Shareholder and any other Holder that has previously effected an Effected requested its Registrable Securities included in such Demand Registration pursuant to this Section 22(a) may withdraw all or a portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the Demand Registration. Upon receipt of a notice to such effect (A) from a Holder (or if there is more than one Holder, from all such Holders) with respect to all of the Registrable Securities included by such Holders in such Demand Registration; or (B) from one or more Holders with respect to Registrable Securities held by them that would cause the anticipated aggregate offering price, net of underwriting discounts and commissions, to fall to $30,000,000 or below, the Company shall not be required cease all effort to file another secure effectiveness of the applicable Demand Registration. Any Demand Registration Statement that is withdrawn pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant 2(a)(iv) shall nonetheless be deemed to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date one of the completion three Demand Registrations for purposes of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereof).
Appears in 1 contract
Sources: Registration Rights Agreement (J. Alexander's Holdings, Inc.)
Demand Registrations. Apollo may(a) Subject to the terms and conditions hereof, at solely during any time during period when the Term Company is not eligible under Applicable Law to register Registrable Securities on Form S-3 pursuant to Section 1.3, any Holder (“Requesting Stockholders”) shall be entitled to make requests of this Agreementthe Company (each, by written notice (a “Demand NoticeDemand”) delivered to the Company, require the Company to register for registration under the Securities Act of an amount of Registrable Securities then held by such Requesting Stockholders that equals or is greater than the Registrable Amount (a “Demand Registration”) all or part of ). Thereupon the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo Company will, subject to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes the terms of this Section 2. All requests for Demand Registrations made pursuant Agreement, use its reasonable best efforts to this Section 2 shall specify effect the number of shares of Registrable Common Stock to be registered and registration as promptly as reasonably practicable under the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoingSecurities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 1.1(b), but subject to Section 1.1(e); and
(iii) all shares of Company Common Stock which the 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(e); 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 five (5) 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 from the Holder thereof within five (5) Business Days after the Company’s notice required by this paragraph has been given, subject to Section 1.1(e). Each such written request shall comply with the requirements of a Demand as set forth in this Section 1.1(b). The Company shall not be required to effect any Demand Registration within one hundred eighty (180) days after the effective date of a previous Demand Registration and shall not be obligated to effect more than two three (3) Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, 1.1.
(c) Demand Registrations shall be on Form S-1 or any similar long-form registration statement that may be available at the time.
(d) The Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from maintain the date on which the registration statement filed with the SEC pursuant to such Effected effectiveness of a Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by for a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier period of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares hundred eighty (180) days or such shorter period in which all Registrable Securities included in such Demand Registration have actually been sold thereunder (provided, that such period shall be extended for a period of time equal to the period the Holder of Registrable Common Stock; and
(ivSecurities refrains from selling any securities included in such registration statement at the request of the Company or the lead managing underwriter(s) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares the provisions of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the this Agreement). The Company shall not be obligated to file effect any Demand Registration (A) within one hundred eighty (180) days of a “firm commitment” Underwritten Offering in which all Holders were offered “piggyback” rights pursuant to Section 1.2 (subject to Section 1.2(b)) and at least 80% of the number of Registrable Securities requested by such Requesting Stockholders to be included in such Demand Registration were included and sold or (B) within one hundred eighty (180) days of the completion of any other Demand Registration (including, for the avoidance of doubt, any Underwritten Offering pursuant to any Shelf Registration Statement).
(e) If, in connection with a Demand Registration Statement before or Shelf Offering that involves an Underwritten Offering, the earlier lead managing underwriter(s) advise(s) the Company that, in its (their) opinion, the inclusion of all of the date on which the lock-up agreement, if any, that Apollo has entered into with respect securities sought to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company registered in connection with such withdrawn Demand Registration would materially adversely affect the price that will be paid in such offering or the marketability thereof, then the Company shall include in such registration statement only such securities as the Company is advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in the following order of priority: (i) first pro rata among the Holders that have requested to participate in such Demand Registration based on the relative number of Registrable Securities then held by each such Holder (provided that any Registrable Securities thereby allocated to a Holder that exceed such Holder’s request shall be considered Expenses for reallocated among the purpose remaining requesting Holders in like manner); (ii) second, any Existing Registrable Securities or Primary Issuance Funding Securities requested to be registered or sold by the Demand Committee, any securities entitled to Other Registration Rights that are pari passu with the piggyback rights contained in the Existing Registration Rights Agreement requested to be registered by the holders thereof and any securities the Company proposes to register or sell (other than Primary Issuance Funding Securities), ratably among the Company, such participating Covered Persons and the holders of calculating Excess Expenses such Other Registration Rights based on the respective amounts of securities the Company has proposed to include, the Demand Committee has requested to include and the holders of such Other Registration Rights have requested to include and (iii) third, all other securities of the Company duly requested to be included in such registration statement by other persons, pro rata on the basis of the amount of such other securities requested to be included or such other allocation method determined by the Company.
(f) The Company shall be entitled to postpone (upon written notice and the delivery of a certificate in accordance with this Section 1.1(f) to the Requesting Stockholders and any other Holders whose Registrable Securities are covered by such Demand pursuant to Section 7 hereof1.1(b)) the filing or effectiveness of a registration statement for any Demand Registration in the event of a Blackout Period (subject to the conditions of the definition thereof) until the expiration of the applicable Blackout Period. In the event of a Blackout Period, the Company shall deliver to the Requesting Stockholders requesting registration and any other Holders whose Registrable Securities are covered by such Demand pursuant to Section 1.1(b) a certificate signed by 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) Any time that a Demand Registration or Shelf Offering involves an Underwritten Offering, the Holders who have requested to participate in such Demand Registration or Shelf Offering shall select the investment banker(s) and manager(s) that will serve as managing underwriters (including which such managing underwriters will serve as lead or co-lead) and underwriters with respect to the offering of such Registrable Securities; provided that such investment banker(s) and manager(s) shall be subject to the prior written consent of the Holders of a majority of the Registrable Securities then held by the Company, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Demand Registrations. Apollo may, at any time during (a) Beginning on the Term date which is 270 days after the date of this Agreement, by upon the receipt of a written notice request from the holders of a majority of the Investor Registrable Securities ("Initiating Investors") that the Corporation file a “Demand Notice”) delivered to the Company, require the Company to register Registration Statement under the Securities Act (a “Demand Registration”) covering the registration for the offer and sale of all or part of such Initiating Investors' Registrable Securities (an "Investor Demand Registration"), as soon as practicable, the Registrable Common Stock on behalf Corporation shall give written notice to all other Holders of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a such Investor Demand Registration for purposes and shall cause all Registrable Securities that the Initiating Investors have requested be registered to be registered under the Act, subject to and in accordance with the terms, conditions, procedures and limitations contained in this Agreement. A maximum of this Section 2. All requests for two such Investor Demand Registrations made may be effected pursuant to this Section 2 shall specify the number of shares of Registrable Common Stock to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
(i) the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration pursuant to this Section 2, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant to such Effected Demand Registration was declared effective by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof2(a), and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” registration requested pursuant to this Section 2(a) shall not be deemed to have been effected unless a period Registration Statement with respect thereto has become effective, remained continuously effective without interruption in accordance with the provisions of days Section 5(a) hereof, and the Registered Securities shall have been disposed of up to 90 days; provided, however, in no event shall accordance with the Company delay any plan of distribution set forth therein. The Initiating Investors may terminate an Investor Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice prior to the Company. If Apollo withdraws its Demand Notice filing of a Registration Statement relating thereto, or require the Corporation to withdraw promptly any Registration Statement which has been filed pursuant to this Section 2(a) during 2 but which has not become effective under the pendency of Act, and such delay, the registration shall not be deemed to be an Investor Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations if either (i) it agrees to which Apollo is otherwise entitled and, none of pay the costs and expenses incurred of such registration as set forth in Section 8 below or (ii) such withdrawal is accompanied by Apollo notice from the Initiating Investors that, in the good faith exercise of its reasonable judgment, there has occurred either (x) a material adverse change in the business, results of operations, financial condition or prospects of the Company Corporation, (y) a material adverse change in connection the United States financial markets which makes it inadvisable to proceed with such withdrawn Demand Registration shall be considered Expenses for the purpose registration, or (z) a misstatement or omission in any preliminary prospectus which makes it inadvisable to proceed with the registration.
(b) Beginning on the date on which the Investors have received $35 Million of calculating Excess Expenses Aggregate Proceeds (as determined pursuant to Section 7 9(g) below), upon the receipt of a written request from the holders of a majority of the Management Registrable Securities ("Initiating Management Holders") that the Corporation file a Registration Statement under the Act covering the registration for the offer and sale of all or part of such Initiating Management Holders' Registrable Securities (a "Management Demand Registration"), as soon as practicable, the Corporation shall give written notice to all other Holders of such Management Demand Registration and shall cause all Registrable Securities that the Initiating Management Holders have requested be registered to be registered under the Act, subject to and in accordance with the terms, conditions, procedures and limitations contained in this Agreement. A maximum of two such Management Demand Registrations may be effected pursuant to this Section 2(b), and a registration requested pursuant to this Section 2(b) shall not be deemed to have been effected unless a Registration Statement with respect thereto has become effective, remained continuously effective without interruption in accordance with the provisions of Section 5(a) hereof, and the Registered Securities shall have been disposed of in accordance with the plan of distribution set forth therein. The Initiating Management Holders may terminate a Management Demand Registration prior to the filing of a Registration Statement relating thereto, or require the Corporation to withdraw promptly any Registration Statement which has been filed pursuant to this Section 2(b) but which has not become effective under the Act, and such registration shall not be deemed to be a Management Demand Registration if either (i) it agrees to pay the costs and expenses of such registration as set forth in Section 8 below or (ii) such withdrawal is accompanied by notice from the Initiating Management Holders that, in the good faith exercise of its reasonable judgment, there has occurred either (x) a material adverse change in the business, results of operations, financial condition or prospects of the Corporation, (y) a material adverse change in the United States financial markets which makes it inadvisable to proceed with the registration, or (z) a misstatement or omission in any preliminary prospectus which makes it inadvisable to proceed with the registration.
Appears in 1 contract
Demand Registrations. Apollo may, at (a) At any time during after the Term Required Approval is received, and from time to time thereafter, upon the receipt of this Agreement, a written request from the Holders of a majority of the Registrable Securities beneficially owned by written notice (a “Demand Notice”) delivered to the Company, require ▇▇▇▇▇▇▇▇▇▇ and its Affiliates that the Company to register file a Registration Statement under the Securities Act (a “Demand Registration”) covering the registration for the offer and sale of all or part of such ▇▇▇▇▇▇▇▇▇▇'▇ Registrable Securities (a "▇▇▇▇▇▇▇▇▇▇ Demand Registration"), as soon as practicable, the Registrable Common Stock on behalf Company shall give written notice to all other Holders of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo to include shares in a Piggyback Registration shall not constitute a such ▇▇▇▇▇▇▇▇▇▇ Demand Registration for purposes of and shall cause all such Registrable Securities that ▇▇▇▇▇▇▇▇▇▇ and such other Holders have requested, which written request must be received by the Company no later than 30 days after the Company shall have given the aforesaid notice, to be registered under the Act, subject to and in accordance with the terms, conditions, procedures and limitations contained in this Agreement, including as set forth in Section 9 below. Three ▇▇▇▇▇▇▇▇▇▇ Demand Registrations are entitled to be effected pursuant to this Section 2. All requests for Demand Registrations made 2 and a registration requested pursuant to this Section 2 shall specify not be deemed to have been effected unless a Registration Statement with respect thereto has become effective, and remained continuously effective without interruption in accordance with the number provisions of shares Section 5(a) hereof, or not withdrawn as permitted in accordance with the terms and conditions of Registrable Common Stock this Agreement. The Holders initiating a ▇▇▇▇▇▇▇▇▇▇ Demand Registration may terminate such ▇▇▇▇▇▇▇▇▇▇ Demand Registration prior to the filing of a Registration Statement relating thereto, or require the Company to withdraw promptly any Registration Statement which has been filed pursuant to this Section 2 but which has not become effective under the Act, and such registration shall not be deemed to be registered and the intended methods of disposition thereof. Notwithstanding anything to the contrary in the foregoing:
a ▇▇▇▇▇▇▇▇▇▇ Demand Registration if either (i) the Holders of the Registrable Securities sought to be included in such registration agree to pay the costs and expenses of such registration as set forth in Section 8 below, pro rata in accordance with the number of Registrable Securities sought to be sold by each of them in such registration, subject to the provisions of Section 9 below, or (ii) such withdrawal is accompanied by notice from ▇▇▇▇▇▇▇▇▇▇ that, in the good faith exercise of its reasonable judgment, there has occurred either (A) a material adverse change in the business, results of operations, financial condition or prospects of the Company or (B) a misstatement or omission in any preliminary prospectus (other than with respect to such information supplied in writing by or on behalf of such Holder expressly for use in such preliminary prospectus) which makes it inadvisable to proceed with the registration.
(b) At any time and from time to time after the date which is five years after the date hereof, upon the receipt of a written request from the Holders of a majority of the Registrable Securities beneficially owned by Quilvest and its Affiliates that the Company file a Registration Statement under the Act covering the registration for the offer and sale of all or part of such Registrable Securities (the "Quilvest Demand Registration"), as soon as practicable, the Company shall give written notice to all other Holders of such Quilvest Demand Registration and shall cause all such Registrable Securities that Quilvest and such other Holders have requested, which written request must be received by the Company no later than 30 days after the Company shall have given the aforesaid notice, to be registered under the Act, subject to and in accordance with the terms, conditions, procedures and limitations contained in this Agreement, including as set forth in Section 9 below. One Quilvest Demand Registration is entitled to be effected pursuant to this Section 2 and a registration requested pursuant to this Section 2 shall not be required deemed to effect more than two Demand Registrations during have been effected unless a Registration Statement with respect thereto has become effective, remained continuously effective without interruption in accordance with the term provisions of Section 5(a) hereof, or not withdrawn as permitted in accordance with the terms and conditions of this Agreement;
. The Holders initiating a Quilvest Demand Registration may terminate its Quilvest Demand Registration prior to the filing of a Registration Statement relating thereto, or require the Company to withdraw promptly any Registration Statement which has been filed pursuant to this Section 2 but which has not become effective under the Act, and such registration shall not be deemed to be a Quilvest Demand Registration if either (i) the Holders of the Registrable Securities sought to be included in such registration agree to pay the costs and expenses of such registration as set forth in Section 8 below, pro rata in accordance with the number of Registrable Securities sought to be sold by each of them in such registration, subject to the provisions of Section 9 below, or (ii) if such withdrawal is accompanied by notice from Quilvest that, in the Company good faith exercise of its reasonable judgment, there has previously effected an Effected Demand Registration occurred either (A) a material adverse change in the business, results of operations, financial condition or prospects of the Company, or (B) a misstatement or omission in any preliminary prospectus (other than with respect to such information supplied in writing by or on behalf of such Holder expressly for use in such preliminary prospectus) which makes it inadvisable to proceed with the registration.
(c) If at the time of any request to register Registrable Securities pursuant to this Section 2, the Company shall not be required is preparing or within 30 days thereafter engages a managing underwriter and commences to file another prepare a Registration Statement for a public offering (other than a registration effected solely to implement an employee benefit plan) which in fact is filed and becomes effective within 120 days after the date the Holders initiating a Demand Registration notify the Company of its intention to effect a Demand Registration, respectively (any of which is herein a "Demand Registration"), or is engaged in any material acquisition or divestiture or other business transaction with a third party which would be adversely affected by the Demand Registration to the material detriment of the Company, then the Company may at its option direct that such request for a Demand Registration be delayed for a period not in excess of 120 days from the date of such request, such right to delay a request pursuant to this Section 2 until 180 days have elapsed from the date on which the registration statement filed with the SEC pursuant 2(c) or in Section 4 below to such Effected Demand Registration was declared effective be exercised by the SEC; provided, that, if the previous Effected Demand Registration was effected by a “shelf” registration as requested by Apollo, the Company shall not be required to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is declared effective by the SEC, the Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreement, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a) shall be a period of days of up to 90 days; provided, however, in no event shall the Company delay any Demand Registration for a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than once. If the Company delays the Demand Registration, Apollo may withdraw its Demand Notice during the pendency of such delay by written notice to the Company. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company once in connection with such withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereofany one year period.
Appears in 1 contract
Sources: Registration Rights Agreement (Littlejohn Fund Ii L P)
Demand Registrations. Apollo may, at (a) At any time during after December 31, 2011, the Term holders of this Agreement, by written notice (a “Demand Notice”) delivered to the Company, require Registrable Shares may request the Company to register for sale under the Securities Act all or any portion of the Registrable Shares held by such requesting holder or holders for sale in the manner specified in such notice (a “Demand Registration”); provided, that each Demand Registration be at least equal to 1,000,000 (as such number may be adjusted for stock splits, stock dividend and similar events) all or part of the Registrable Common Stock on behalf of Apollo and any of its Affiliates which hold Registrable Common Stock. Requests from Apollo Company’s then outstanding common shares.
(b) Grandunion shall have the right to include shares in a Piggyback Registration shall not constitute a Demand Registration for purposes of this Section two (2. All requests for ) Demand Registrations made pursuant to this Section 2 shall specify 3, provided, that the number of shares of Registrable Common Stock Company will not be obligated to be registered effect more than one Demand Registration in any three (3) month period and the intended methods of disposition thereof. more than one Demand Registration for each in any twelve (12) month period.
(c) Notwithstanding anything to the contrary in the foregoing:
(i) contained herein, the Company shall not be required to effect more than two Demand Registrations during the term of this Agreement;
(ii) if the Company has previously effected an Effected Demand Registration a registration pursuant to this Section 23 during the period commencing thirty (30) days prior to the estimated filing date of, and ending on the date which is within one hundred eighty (180) days after the effective date of a registration statement filed by the Company covering an underwritten public offering, which includes securities to be sold for the account of the Company.
(d) Following receipt of any notice under this Section 3, the Company shall immediately notify all holders of Registrable Shares from whom notice has not been received and such holders shall then be required to file another Registration Statement pursuant to this Section 2 until 180 entitled within ten (10) business days have elapsed after receipt of such notice from the date on which Company to request the Company to include in the requested registration statement all or any portion of their Registrable Shares. If no request for inclusion from a holder is received within the specified time, such holder shall have no further right to participate in such registration. The Company shall, as expeditiously as possible following a receipt of any notice under Section 3, but in any event within ninety (90) days, cause to be filed with the SEC pursuant Commission a registration statement on an appropriate form as shall be selected by the Company providing for the registration under the Securities Act of the Registrable Shares that the Company has been so requested to register by all such Effected Demand Registration was holders, to the extent necessary to permit the disposition of such Registrable Shares so to be registered in accordance with the intended methods of disposition thereof specified in such registration statement. The Company shall use its reasonable efforts to have such registration statement declared effective by the SEC; providedCommission as soon as practicable thereafter, that, but in any event within sixty (60) days following a Demand Registration if the previous Effected registration statement is not reviewed by the Commission and within one hundred eighty (180) days following a Demand Registration was effected in the event that the registration statement is reviewed by a “shelf” the Commission, and to keep such registration statement continuously effective for the period specified in Section 9(b); provided however that such period shall expire as requested by Apolloset forth in Section 5. Notwithstanding the foregoing sentence, the Company shall not in no event be required obligated to file another Registration Statement pursuant to this Section 2 until 180 days have elapsed from the earlier of (A) the date of the completion of the sale of all Registrable Common Stock registered pursuant to such Effected Demand Registration and (B) the date of expiration or withdrawal of such Registration Statement for such Effected Demand Registration;
(iii) each Demand Registration shall be for at least one million shares of Registrable Common Stock; and
(iv) if Apollo has exercised Piggy-Back Registration rights pursuant to Section 3 hereof, and in connection therewith at least 1,500,000 shares of Registrable Common Stock are included on the Registration Statement related to such Piggy-Back Registration when such Registration Statement is registration statement declared effective by the SECprior to December 31, the 2011. The Company shall not be obligated to file a Demand Registration Statement before the earlier of the date on which the lock-up agreementregister, if any, that Apollo has entered into with respect to such Registration Statement expires, or the date that is 180 days after the effective date of such Registration Statement. Notwithstanding the foregoing, the Company may delay a Demand Registration for the Permitted Delay Period (as defined below) from the date the Company first gives Apollo notice of such delay by written notice to Apollo stating the reason for and the extent of any such delay, if the Board of Directors of the Company determines in good faith that proceeding with the proposed offering would have a material adverse effect on the Company, or during the pendency of a transaction that the Board of Directors of the Company determines in good faith is material to the Company. As used herein, the “Permitted Delay Period” pursuant to this Section 2(a3, the Registrable Shares of any holder who fails to provide promptly to the Company such information as the Company may reasonably request at any time to enable the Company to comply with any applicable law or regulation or to facilitate preparation of the registration statement.
(e) If the holders requesting such registration intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 3 and the Company shall include such information in the written notice referred to in paragraph (d) above. The right of any holder to participate in an underwritten registration pursuant to this Section 3 shall be conditioned upon such holder’s agreeing to participate in such underwriting and to permit inclusion of such holder’s Registrable Shares in the underwriting. If such method of disposition is an underwritten public offering, the holders of at least a period majority in interest of days the Registrable Shares to be sold in such offering may designate the managing underwriter of up such offering, subject to 90 days; providedthe approval of the Company, howeverwhich approval shall not be unreasonably withheld or delayed.
(f) In addition to Registrable Shares, a registration statement filed pursuant to this Section 3 may, subject to the following provisions, also include (i) shares of Common Stock for sale by the Company for the Company’s own account, (ii) shares of Common Stock held by officers or directors of the Company and (iii) shares of Common Stock held by Other Shareholders, in no event each case for sale in accordance with the method of disposition specified by the requesting holders. If such registration shall be underwritten, each holder of Registrable Shares the Company delay any Demand Registration 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 a longer period than the Board of Directors determines in good faith is necessary under the existing circumstances; provided further that in no event shall the Company delay a Demand Registration more than oncesuch underwriting. If the Company delays managing underwriter determines that marketing factors require a limitation of the Demand Registrationnumber of Registrable Shares to be registered under this Section 3, Apollo then Registrable Shares shall be excluded in such manner that the securities to be sold shall be allocated among the selling holders pro rata based on their ownership of Registrable Shares. In any event, all securities to be sold other than Registrable Shares will be excluded prior to any exclusion of Registrable Shares. No Registrable Shares or any other security excluded from the registration and underwriting by reason of the underwriter’s marketing limitation shall be included in such registration 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 terms of the underwriting, such holder of securities may elect to withdraw its Demand Notice during the pendency of such delay therefrom by written notice to the CompanyCompany and the managing underwriter. If Apollo withdraws its Demand Notice pursuant to this Section 2(a) during the pendency of such delay, the Demand Registration The securities so withdrawn shall not constitute a Demand Registration under this Agreement and shall not reduce the number of Demand Registrations to which Apollo is otherwise entitled and, none of the costs and expenses incurred by Apollo or the Company in connection with such also be withdrawn Demand Registration shall be considered Expenses for the purpose of calculating Excess Expenses pursuant to Section 7 hereoffrom registration.
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Sources: Registration Rights Agreement (NewLead Holdings Ltd.)