Form S-3 Registration. (i) After the Company is eligible to Register Registrable Securities on Form S-3, each Holder will have the right to demand, subject to the restrictions on the number of Demand Registrations in Section 3(a)(ii), that the Company effect one or more Registrations with respect to all or a part of its Registrable Securities on Form S-3 and any related qualification or compliance; except that no such demand right will apply to Registrable Securities having an anticipated aggregate price to the public (before any underwriting discounts and commissions) of less than $10,000,000, unless there shall be other Holders who have requested participation in such Registration who, in the aggregate with the Initiating Holder, shall have proposed Registration of Registrable Securities having an anticipated aggregate price to the public (before any underwriting discounts and commissions) of at least $10,000,000. Upon receipt of written request, the Company will, as soon as practicable, (i) give a Request Notice relating to the proposed registration to all other Holders, and any other holders of Common Stock who executed a registration rights agreement on the date hereof (and any of their permitted transferees, as defined in such registration rights agreement), and (ii) effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Initiating Holder’s Registrable Securities as are specified in such request together with the Registrable Securities requested to be included by any other Holders who notify the Company in writing within fifteen (15) days after receipt of such Request Notice from the Company; except that the Company will not be obligated to effect any such registration, qualification or compliance pursuant to this Section 3(b) if Form S-3 is not available for such offering. (ii) The Company in its sole discretion may condition the inclusion of Registrable Securities in a Registration under this Section 3(b) upon the timely provision by such Holder of such information as the Company may reasonably request relating to the disclosure requirements of Item 507 of Regulation S-K (or any similar disclosure requirement applicable to such Registration). (iii) The Company will be entitled to postpone (but not more than once in any 12-month period), for a reasonable period of time not in excess of 90 days (less the number of days the Company has postponed the filing of a registration statement pursuant to Section 3(a)(iii) or Section 3(c)(i)), the filing of a registration statement in accordance with this Section 3(b) or Section 3(a) if the Company notifies the Holders requesting Registration that, in the good faith judgment of the board of directors of the Company (in consultation with legal counsel and/or an investment banking firm of recognized national standing), such Registration and offering would reasonably be expected to materially and adversely affect or materially interfere with any bona fide material financing of the Company or any material transaction under consideration by the Company or would require disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially and adversely affect the Company. Such notice will contain a statement of the reasons for such postponement if able to be disclosed and an approximation of the anticipated delay. If the Company so postpones the filing of a registration statement, the Initiating Holder will have the right to withdraw its request for Registration (and the Holders who have requested that their Registrable Securities be included in such Registration may withdraw such Registrable Securities from such Registration) by giving written notice to the Company within ten (10) days of the anticipated termination date of the postponement period, as provided in the notice delivered to the Holders.
Appears in 6 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (3G Capital Partners LP), Registration Rights Agreement (Burger King Worldwide, Inc.)
Form S-3 Registration. (i) After the Company is eligible to Register any Registrable Securities on Form S-3, each Holder will have the right to demand, subject to the restrictions on the number of Demand Registrations in Section 3(a)(ii), demand that the Company effect one or more Registrations with respect to all or a part of its Registrable Securities on Form S-3 and any related qualification or compliance; except that no such demand right will apply to Registrable Securities having an anticipated aggregate price to the public (before any underwriting discounts and commissions) of less than $10,000,0005,000,000, unless there shall be other Holders who have requested participation in such Registration who, in the aggregate with the Initiating Holder, shall have proposed Registration of Registrable Securities having an anticipated aggregate price to the public (before any underwriting discounts and commissions) of at least $10,000,0005,000,000. Any demand for Registration under this Section 3(c)(i) will not be considered a Demand Registration request pursuant to Section 3(b). Upon receipt of written request, the Company will, as soon as practicable, (i) give a Request Notice relating to the proposed registration to all other Holders, and any other holders of Common Stock who executed a registration rights agreement on the date hereof (and any of their permitted transferees, as defined in such registration rights agreement), and (ii) effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Initiating Holder’s Registrable Securities as are specified in such request together with the Registrable Securities requested to be included by any other Holders who notify the Company in writing within fifteen five (155) business days after receipt of such Request Notice from the Company; except that the Company will not be obligated to effect any such registration, qualification or compliance pursuant to this Section 3(b3(c) if Form S-3 is not available for such offering.
(ii) The Company in its sole discretion may condition the inclusion of Registrable Securities in a Registration under this Section 3(b3(c) upon the timely provision by such Holder of such information as the Company may reasonably request relating to the disclosure requirements of Item 507 of Regulation S-K (or any similar disclosure requirement applicable to such Registration).
(iii) The Company will be entitled required to postpone (but not more than once in any 12-month period), maintain the effectiveness of the registration statement with respect to Registrable Securities on Form S-3 registered pursuant to this Section 3(c) for a reasonable period of time not at least 270 days after the effective date thereof or such shorter period in excess of 90 days (less the number of days the Company has postponed the filing of a registration statement pursuant to Section 3(a)(iii) or Section 3(c)(i)), the filing of a registration statement in accordance with this Section 3(b) or Section 3(a) if the Company notifies the Holders requesting Registration that, in the good faith judgment of the board of directors of the Company (in consultation with legal counsel and/or an investment banking firm of recognized national standing), such Registration and offering would reasonably be expected to materially and adversely affect or materially interfere with any bona fide material financing of the Company or any material transaction under consideration by the Company or would require disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially and adversely affect the Company. Such notice will contain a statement of the reasons for such postponement if able to be disclosed and an approximation of the anticipated delay. If the Company so postpones the filing of a registration statement, the Initiating Holder will have the right to withdraw its request for Registration (and the Holders who have requested that their all Registrable Securities be included in such Registration may withdraw registration statement have actually been sold, except that the Company will extend the time period under this Section 3(c)(iii) with respect to the length of time that the effectiveness of such registration statement must be maintained by the amount of time any Holder is required to discontinue disposition of such Registrable Securities from such Registration) by giving written notice pursuant to the Company within ten (10) days any other provision of the anticipated termination date of the postponement period, as provided in the notice delivered to the Holdersthis Agreement.
Appears in 4 contracts
Sources: Registration Rights Agreement (Spectrum Brands, Inc.), Registration Rights Agreement (Spectrum Brands, Inc.), Registration Rights Agreement
Form S-3 Registration. (a) Within the time periods specified in Section 1.1(b), the Company shall file with the Securities and Exchange Commission (the "SEC") a shelf registration statement ("Registration Statement") and related prospectus ("Prospectus") that complies in all material respects with applicable SEC rules providing for registration under the Securities Act of the offer and sale by the Investors of the total number of Registrable Shares (i) After that have been issued to the Investors pursuant to the Contribution Agreement and (ii) that the Investors would own if they were to exchange all Units issued to them. The Company is eligible shall (subject to Register Section 1.6 hereof) use its reasonable best efforts to cause the Registration Statement to be declared effective by the SEC as soon as practicable after filing. The Company agrees to use its reasonable efforts to keep the Registration Statement with respect to the Registrable Securities Shares filed pursuant to this SECTION 1.1 continuously effective for a period expiring on Form S-3, each Holder will the earlier of (i) the date on which all of the Registrable Shares covered by the Registration Statement have been sold pursuant thereto and (ii) the date on which (A) all Registrable Shares (and all Company Shares that such Investors have the right to demand, subject to obtain in exchange for Units) held by Investors who are not affiliates of the restrictions on the number of Demand Registrations in Section 3(a)(ii), that the Company effect one or more Registrations with respect to all or a part of its Registrable Securities on Form S-3 and any related qualification or compliance; except that no such demand right will apply to Registrable Securities having an anticipated aggregate price to the public (before any underwriting discounts and commissions) of less than $10,000,000, unless there shall be other Holders who have requested participation in such Registration whoCompany, in the aggregate with opinion of counsel for the Initiating HolderCompany, which counsel shall have proposed Registration of Registrable be reasonably acceptable to such Investors, are eligible for sale pursuant to Rule 144(k) under the Securities having an anticipated aggregate price to the public (before any underwriting discounts and commissions) of at least $10,000,000. Upon receipt of written request, the Company will, as soon as practicable, (i) give a Request Notice relating to the proposed registration to all other Holders, and any other holders of Common Stock who executed a registration rights agreement on the date hereof (and any of their permitted transferees, as defined in such registration rights agreement), Act and (iiB) effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution Registrable Shares held by each Investor who is an affiliate of all or such portion of such Initiating Holder’s Registrable Securities as are specified in such request together with the Registrable Securities requested to be included by any other Holders who notify the Company in writing within fifteen (15) days after receipt of such Request Notice from the Company; except that , in the Company will not opinion of counsel for the Company, which counsel shall be obligated reasonably acceptable to effect any such registrationInvestor, qualification or compliance are eligible for sale pursuant to this Section 3(b) if Form S-3 is not available for such offering.
(ii) The Company in its sole discretion may condition Rule 144 under the inclusion of Registrable Securities in Act and could be sold within a Registration under this Section 3(b) upon the timely provision by such Holder of such information as the Company may reasonably request relating to the disclosure requirements of Item 507 of Regulation S-K (or any similar disclosure requirement applicable to such Registration).
(iii) The Company will be entitled to postpone (but not more than once in any 12-month period), for a reasonable period of time not in excess of 90 days (less the number of days the Company has postponed the filing of a registration statement pursuant to Section 3(a)(iii) or Section 3(c)(i)), the filing of a registration statement three months in accordance with this Section 3(bthe volume limitations contained in Rule 144(e)(l)(i) or Section 3(a) if under the Company notifies the Holders requesting Registration that, in the good faith judgment of the board of directors of the Company (in consultation with legal counsel and/or an investment banking firm of recognized national standing), such Registration and offering would reasonably be expected to materially and adversely affect or materially interfere with any bona fide material financing of the Company or any material transaction under consideration by the Company or would require disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially and adversely affect the Company. Such notice will contain a statement of the reasons for such postponement if able to be disclosed and an approximation of the anticipated delay. If the Company so postpones the filing of a registration statement, the Initiating Holder will have the right to withdraw its request for Registration (and the Holders who have requested that their Registrable Securities be included in such Registration may withdraw such Registrable Securities from such Registration) by giving written notice to the Company within ten (10) days of the anticipated termination date of the postponement period, as provided in the notice delivered to the HoldersAct.
Appears in 2 contracts
Sources: Registration Rights Agreement (Amli Residential Properties Trust), Registration Rights Agreement (Amli Residential Properties Trust)
Form S-3 Registration. (i) After the Company is eligible to Register Registrable Securities on Form S-3, each Holder will have the right to demand, subject to the restrictions on the number of Demand Registrations in Section 3(a)(ii), demand that the Company effect one or more Registrations with respect to all or a part of its Registrable Securities on Form S-3 and any related qualification or compliance; except that no such demand right will apply to Registrable Securities having an anticipated aggregate price to the public (before any underwriting discounts and commissions) of less than $10,000,000, unless there shall be other Holders who have requested participation in such Registration who, in the aggregate with the Initiating Holder, shall have proposed Registration of Registrable Securities having an anticipated aggregate price to the public (before any underwriting discounts and commissions) of at least $10,000,000. Any demand for Registration under this Section 3(b)(i) will not be considered a Demand Registration request pursuant to Section 3(a). Upon receipt of written request, the Company will, as soon as practicable, (i) give a Request Notice relating to the proposed registration to all other Holders, and any other holders of Common Stock who executed a registration rights agreement on the date hereof (and any of their permitted transferees, as defined in such registration rights agreement), and (ii) effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Initiating Holder’s Registrable Securities as are specified in such request together with the Registrable Securities requested to be included by any other Holders who notify the Company in writing within fifteen (15) days after receipt of such Request Notice from the Company; except that the Company will not be obligated to effect any such registration, qualification or compliance pursuant to this Section 3(b) if Form S-3 is not available for such offering.
(ii) The Company in its sole discretion may condition the inclusion of Registrable Securities in a Registration under this Section 3(b) upon the timely provision by such Holder of such information as the Company may reasonably request relating to the disclosure requirements of Item 507 of Regulation S-K (or any similar disclosure requirement applicable to such Registration).
(iii) The Company will be entitled to postpone (but not more than once in any 12-month period), for a reasonable period of time not in excess of 90 days (less the number of days the Company has postponed the filing of a registration statement pursuant to Section 3(a)(iii) or Section 3(c)(i)), the filing of a registration statement in accordance with this Section 3(b) or Section 3(a) if the Company notifies the Holders requesting Registration that, in the good faith judgment of the board of directors of the Company (in consultation with legal counsel and/or an investment banking firm of recognized national standing), such Registration and offering would reasonably be expected to materially and adversely affect or materially interfere with any bona fide material financing of the Company or any material transaction under consideration by the Company or would require disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially and adversely affect the Company. Such notice will contain a statement of the reasons for such postponement if able to be disclosed and an approximation of the anticipated delay. If the Company so postpones the filing of a registration statement, the Initiating Holder will have the right to withdraw its request for Registration (and the Holders who have requested that their Registrable Securities be included in such Registration may withdraw such Registrable Securities from such Registration) by giving written notice to the Company within ten (10) days of the anticipated termination date of the postponement period, as provided in the notice delivered to the Holders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Clearwire Corp), Registration Rights Agreement (New Clearwire CORP)
Form S-3 Registration. (ia) After If the Company is eligible to Register Registrable Securities on Form S-3, each Holder will have the right to demand, subject to the restrictions on the number shall receive from any holder or holders of Demand Registrations in Section 3(a)(ii), Restricted Stock a written request or requests that the Company effect one or more Registrations with respect to all or a part of its Registrable Securities registration on Form S-3 and any related qualification or compliance; except that no compliance with respect to Restricted Stock owned by such demand right will apply to Registrable Securities having an holder or holders, the reasonably anticipated aggregate price to the public (before any underwriting discounts and commissions) of less than which would exceed $10,000,000, unless there shall be other Holders who have requested participation in such Registration who, in the aggregate with the Initiating Holder, shall have proposed Registration of Registrable Securities having an anticipated aggregate price to the public (before any underwriting discounts and commissions) of at least $10,000,000. Upon receipt of written request1,000,000, the Company will:
(i) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other holders of Restricted Stock; and
(ii) as soon as is reasonably practicable, use its best efforts to effect such registration (i) give a Request Notice relating including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the proposed registration to all other Holders, Securities Act and any other holders of Common Stock who executed a registration rights agreement on the date hereof (and any of their permitted transferees, as defined in such registration rights agreement), and (iigovernment requirements or regulations) effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Initiating Holder’s Registrable Securities holder's or holders' Restricted Stock as is specified in such request, together with all or such portion of the Restricted Stock of any holder or holders joining in such request as are specified in such a written request together with the Registrable Securities requested to be included by any other Holders who notify the Company in writing given within fifteen (15) 30 days after receipt of such Request Notice written notice from the Company; except provided, however that the Company will shall not be obligated to effect any such registration, qualification or compliance pursuant to this Section 3(b5 (A) if Form S-3 is not available for such offering.
(ii) The Company in its sole discretion may condition the inclusion of Registrable Securities in a Registration under this Section 3(b) upon the timely provision by such Holder of such information as the Company may reasonably request relating to the disclosure requirements of Item 507 of Regulation S-K (or any similar disclosure requirement applicable to such Registration).
(iii) The Company will be entitled to postpone (but not more than once in any 12180-month day period), for a reasonable period of time not in excess of 90 days or (less the number of days the Company has postponed the filing of a registration statement pursuant to Section 3(a)(iii) or Section 3(c)(i)), the filing of a registration statement in accordance with this Section 3(b) or Section 3(aB) if the Company notifies is not entitled to use Form S-3; and provided, further, that the Holders requesting Registration thatonly securities which the Company shall be required to register pursuant hereto shall be shares of Common Stock. Subject to the foregoing, in the good faith judgment Company shall file a registration statement covering the Restricted Stock so requested to be registered as soon as is reasonably practicable after receipt of the board of directors request or requests of the Company (in consultation with legal counsel and/or an investment banking firm of recognized national standing), such Registration and offering would reasonably be expected to materially and adversely affect or materially interfere with any bona fide material financing holders of the Company or any material transaction under consideration by Restricted Stock.
(b) Notwithstanding anything to the contrary contained herein, the Company or would require disclosure of information that has not been, and is not otherwise required shall be obligated to be, disclosed register Restricted Stock pursuant to the public, the premature disclosure of which would materially and adversely affect the Company. Such notice will contain a statement of the reasons for such postponement if able to be disclosed and an approximation of the anticipated delay. If the Company so postpones the filing of a registration statement, the Initiating Holder will have the right to withdraw its request for Registration (and the Holders who have requested that their Registrable Securities be included in such Registration may withdraw such Registrable Securities from such Registration) by giving written notice to the Company within ten (10) days of the anticipated termination date of the postponement period, as provided in the notice delivered to the Holdersthis Section 5 on two occasions only.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Aurora Electronics Inc), Registration Rights Agreement (Aurora Electronics Inc)
Form S-3 Registration. (i) After the Company If GDI is eligible to Register Registrable use Form S-3 under the Securities Act (or any similar successor form) and shall receive from a Purchaser and/or its permitted transferees (the "S-3 Initiating Holders") a written request or requests that GDI effect a registration on such Form S-3, each Holder will have including without limitation, pursuant to Rule 415 of the right to demand, subject to the restrictions on the number of Demand Registrations in Section 3(a)(ii), that the Company effect one Securities Act and any related qualification or more Registrations compliance with respect to all or a part of the Registrable Securities owned by the S-3 Initiating Holders and its permitted transferees (provided, that the S-3 Initiating Holders registering Registrable Securities in such registration (together with all other holders of Registrable Securities to be included in such registration) propose to sell their Registrable Securities at an aggregate price (calculated based upon the Market Price of the Registrable Securities on the date of filing of the Form S-3 with respect to such Registrable Securities) to the public of no less than the lesser of $500,000 or the remaining Registrable Securities), GDI shall (i) promptly give written notice of the proposed registration, and any related qualification or compliance; except that no such demand right will apply , to Registrable Securities having an anticipated aggregate price to the public (before any underwriting discounts and commissions) of less than $10,000,000, unless there shall be all other Holders who have requested participation in such Registration who, in the aggregate with the Initiating Holder, shall have proposed Registration holders of Registrable Securities having an anticipated aggregate price to the public Securities; and (before any underwriting discounts and commissionsii) of at least $10,000,000. Upon receipt of written request, the Company will, as soon as practicable, (i) give a Request Notice relating use reasonable best efforts to the proposed registration to all other Holders, file and any other holders of Common Stock who executed a registration rights agreement on the date hereof (and any of their permitted transferees, as defined in such registration rights agreement), and (ii) effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Initiating Holder’s the Registrable Securities as are specified in such request request, together with all or such portion of the Registrable Securities requested to be included by of any other Holders who notify holder in the Company group of holders joining in writing such request as is specified in a written request given within fifteen (15) days after the holder's receipt of such Request Notice written notice from the Company; except that the Company will not be obligated to effect GDI. No registration requested by any such registration, qualification or compliance S-3 Initiating Holders pursuant to this Section 3(b) if Form S-3 is not available for such offering.
(ii) The Company in its sole discretion may condition the inclusion of Registrable Securities in a Registration under this Section 3(b) upon the timely provision by such Holder of such information as the Company may reasonably request relating to the disclosure requirements of Item 507 of Regulation S-K (or any similar disclosure requirement applicable to such Registration).
(iii) The Company will 1.3 shall be entitled to postpone (but not more than once in any 12-month period), for a reasonable period of time not in excess of 90 days (less the number of days the Company has postponed the filing of deemed a registration statement pursuant to Section 3(a)(iii) or Section 3(c)(i)), the filing of a registration statement in accordance with this Section 3(b) or Section 3(a) if the Company notifies the Holders requesting Registration that, in the good faith judgment of the board of directors of the Company (in consultation with legal counsel and/or an investment banking firm of recognized national standing), such Registration and offering would reasonably be expected to materially and adversely affect or materially interfere with any bona fide material financing of the Company or any material transaction under consideration by the Company or would require disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially and adversely affect the Company. Such notice will contain a statement of the reasons for such postponement if able to be disclosed and an approximation of the anticipated delay. If the Company so postpones the filing of a registration statement, the Initiating Holder will have the right to withdraw its request for Registration (and the Holders who have requested that their Registrable Securities be included in such Registration may withdraw such Registrable Securities from such Registration) by giving written notice to the Company within ten (10) days of the anticipated termination date of the postponement period, as provided in the notice delivered to the Holders1.1.
Appears in 2 contracts
Sources: Securities Purchase Agreement (General Devices Inc), Registration Rights Agreement (General Devices Inc)
Form S-3 Registration. (ia) After If the Company is eligible to Register Registrable Securities on Form S-3, each shall receive from any Demand Holder will have the right to demand, subject to the restrictions on the number of or Demand Registrations in Section 3(a)(ii), Holders a request that the Company effect one a registration on Form S-3 or more Registrations any similar short-form registration statement with respect to all or a part of its the Registrable Securities on Form S-3 held by the Demand Holders, the Company shall:
(i) promptly give notice of the proposed registration, and any related qualification or compliance; except that no , to all other Demand Holders and shall offer to include in such demand right will apply to proposed registration any Registrable Securities having an anticipated aggregate price requested to be included in such proposed registration by such other Demand Holders who respond in writing to the public Company’s notice within thirty (before any underwriting discounts and commissions30) days after delivery of less than $10,000,000, unless there such notice (which response shall be other Holders who have requested participation in such Registration who, in specify the aggregate with the Initiating Holder, shall have proposed Registration number of Registrable Securities having an anticipated aggregate price proposed to the public (before any underwriting discounts and commissions) of at least $10,000,000. Upon receipt of written request, the Company will, as soon as practicable, (i) give a Request Notice relating to the proposed registration to all other Holders, and any other holders of Common Stock who executed a registration rights agreement on the date hereof (and any of their permitted transferees, as defined be included in such registration rights agreementregistration), and ; and
(ii) promptly effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Initiating Holder’s the Registrable Securities as are specified in such request request, together with the Registrable Securities requested to be included by of any other Demand Holder or Demand Holders who notify joining in such request by notice to the Company in writing given within fifteen thirty (1530) days after receipt of such Request Notice notice from the Company; except that .
(b) Notwithstanding anything to the contrary contained herein, the Company will shall not be obligated to effect any such registration, qualification or compliance pursuant to this Section 3(b2.3:
(i) if Form S-3 is not available for such offering.offering by the Demand Holders;
(ii) The if the Demand Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $1,000,000; or
(iii) if the Company has, within the twelve (12) month period preceding the date of such request, already effected two (2) registrations on Form S-3 for the Demand Holders pursuant to this Section 2.3.
(c) Registrations effected pursuant to this Section 2.3 shall not be counted as demands for registration or registrations effected pursuant to Section 2.1. If the initiating Holders intend to distribute Registrable Securities pursuant to an underwriting, they shall so advise the Company in its sole discretion may condition the inclusion of Registrable Securities in a Registration under this demand pursuant to Section 3(b) upon the timely provision by such Holder of such information as the Company may reasonably request relating to the disclosure requirements of Item 507 of Regulation S-K (or any similar disclosure requirement applicable to such Registration2.1(a).
(iiid) The Company will be entitled use commercially reasonable efforts to postpone (but not more than once in any 12-month period), meet the qualification standards for a reasonable period the registration of time not in excess of 90 days (less the number of days the Company has postponed the filing of a registration statement pursuant to Section 3(a)(iii) or Section 3(c)(i)), the filing of a registration statement in accordance with this Section 3(b) or Section 3(a) if the Company notifies the Holders requesting Registration that, in the good faith judgment of the board of directors of the Company (in consultation with legal counsel and/or an investment banking firm of recognized national standing), such Registration and offering would reasonably be expected to materially and adversely affect or materially interfere with any bona fide material financing of the Company or any material transaction under consideration by the Company or would require disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially and adversely affect the Company. Such notice will contain a statement of the reasons for such postponement if able to be disclosed and an approximation of the anticipated delay. If the Company so postpones the filing of a registration statement, the Initiating Holder will have the right to withdraw its request for Registration (and the Holders who have requested that their Registrable Securities be included in such Registration may withdraw such Registrable Securities from such Registration) by giving written notice to the Company within ten (10) days of the anticipated termination date of the postponement period, as provided in the notice delivered to the Holderssecurities on Form S-3.
Appears in 2 contracts
Sources: Registration Rights Agreement (Robcor Properties Inc), Merger Agreement (Robcor Properties Inc)
Form S-3 Registration. (i) After The Company shall use its best efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company is eligible to Register shall receive from any Holder or Holders of Investors' Registrable Securities on Form S-3, each Holder will have the right to demand, subject to the restrictions on the number of Demand Registrations in Section 3(a)(ii), then outstanding a written request or requests that the Company effect one a registration on Form S-3 and any related qualification or more Registrations compliance with respect to all or a part of its the Investors' Registrable Securities on Form S-3 owned by such Holder or Holders, then the Company will: NOTICE. Promptly give written notice of the proposed registration and the Holder's or Holders' request therefor, and any related qualification or compliance; except that no such demand right will apply , to Registrable Securities having an anticipated aggregate price to the public (before any underwriting discounts and commissions) of less than $10,000,000, unless there shall be all other Holders who have requested participation in such Registration who, in the aggregate with the Initiating Holder, shall have proposed Registration of Investors' Registrable Securities having an anticipated aggregate price to the public (before any underwriting discounts Securities; and commissions) of at least $10,000,000REGISTRATION. Upon receipt of written request, the Company will, as As soon as practicable, (i) give a Request Notice relating to the proposed registration to all other Holders, and any other holders of Common Stock who executed a registration rights agreement on the date hereof (and any of their permitted transferees, as defined in file such registration rights agreement), statement and (ii) use its reasonable best efforts to effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Initiating Holder’s 's or Holders' Investor's Registrable Securities as are specified in such request request, together with all or such portion of the Registrable Securities requested to be included by of any other Holder or Holders who notify the Company requesting to participate in writing such registration as are specified in a written request given within fifteen twenty (1520) days after receipt of such Request Notice written notice from the Company; except provided, however, that the Company will shall not be obligated to effect any such registration, qualification or compliance pursuant to this Section 3(b2.4: IF FORM S-3 IS NOT AVAILABLE FOR SUCH OFFERING; IF THE HOLDERS REQUESTING TO PARTICIPATE IN SUCH REGISTRATION, PROPOSE TO SELL REGISTRABLE SECURITIES AT AN AGGREGATE PRICE TO THE PUBLIC OF LESS THAN $75,000; IF THE COMPANY SHALL FURNISH TO THE REQUESTING HOLDERS A CERTIFICATE SIGNED BY THE PRESIDENT OR CHIEF EXECUTIVE OFFICER OF THE COMPANY STATING THAT IN THE GOOD FAITH JUDGMENT OF THE BOARD OF DIRECTORS OF THE COMPANY, IT WOULD BE SERIOUSLY DETRIMENTAL TO THE COMPANY AND ITS SHAREHOLDERS FOR SUCH FORM S-3 REGISTRATION TO BE EFFECTED AT SUCH TIME, IN WHICH EVENT THE COMPANY SHALL HAVE THE RIGHT TO DEFER THE FILING OF THE FORM S-3 REGISTRATION STATEMENT NO MORE THAN ONCE DURING ANY TWELVE MONTH PERIOD FOR A PERIOD OF NOT MORE THAN 90 DAYS AFTER RECEIPT OF THE REQUEST OF THE HOLDER OR HOLDERS UNDER THIS SECTION 2.4; IF THE COMPANY HAS, WITHIN THE SIX (6) if Form MONTH PERIOD PRECEDING THE DATE OF SUCH REQUEST, ALREADY EFFECTED ONE (1) REGISTRATION ON FORM S-3 is not available for such offeringFOR ANY HOLDERS OF INVESTORS' REGISTRABLE SECURITIES PURSUANT TO THIS SECTION 2.4; OR IN ANY PARTICULAR JURISDICTION IN WHICH THE COMPANY WOULD BE REQUIRED TO QUALIFY TO DO BUSINESS OR TO EXECUTE A GENERAL CONSENT TO SERVICE OF PROCESS IN EFFECTING SUCH REGISTRATION, QUALIFICATION OR COMPLIANCE.
(ii) The Company in its sole discretion may condition the inclusion of Registrable Securities in a Registration under this Section 3(b) upon the timely provision by such Holder of such information as the Company may reasonably request relating to the disclosure requirements of Item 507 of Regulation S-K (or any similar disclosure requirement applicable to such Registration).
(iii) The Company will be entitled to postpone (but not more than once in any 12-month period), for a reasonable period of time not in excess of 90 days (less the number of days the Company has postponed the filing of a registration statement pursuant to Section 3(a)(iii) or Section 3(c)(i)), the filing of a registration statement in accordance with this Section 3(b) or Section 3(a) if the Company notifies the Holders requesting Registration that, in the good faith judgment of the board of directors of the Company (in consultation with legal counsel and/or an investment banking firm of recognized national standing), such Registration and offering would reasonably be expected to materially and adversely affect or materially interfere with any bona fide material financing of the Company or any material transaction under consideration by the Company or would require disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially and adversely affect the Company. Such notice will contain a statement of the reasons for such postponement if able to be disclosed and an approximation of the anticipated delay. If the Company so postpones the filing of a registration statement, the Initiating Holder will have the right to withdraw its request for Registration (and the Holders who have requested that their Registrable Securities be included in such Registration may withdraw such Registrable Securities from such Registration) by giving written notice to the Company within ten (10) days of the anticipated termination date of the postponement period, as provided in the notice delivered to the Holders.
Appears in 1 contract
Form S-3 Registration. (i) After If the Company is eligible to Register Registrable Securities on Form S-3, each shall receive from the Holder will have the right to demand, subject to the restrictions on the number of Demand Registrations in Section 3(a)(ii), a written request or requests that the Company effect one or more Registrations with respect to all or a part registration of its the Registrable Securities that are registrable on Form S-3 and any related qualification or compliance; except that no such demand right will apply compliance with respect to all of the Registrable Securities having an anticipated aggregate price to owned by the public (before any underwriting discounts and commissions) of less than $10,000,000, unless there shall be other Holders who have requested participation in such Registration who, in the aggregate with the Initiating Holder, shall have proposed Registration of Registrable Securities having an anticipated aggregate price to the public (before any underwriting discounts and commissions) of at least $10,000,000. Upon receipt of written request, the Company willwill use its reasonable best efforts to effect, as soon as practicable, (i) give a Request Notice relating to the proposed registration to all other Holders, and any other holders of Common Stock who executed a registration rights agreement on the date hereof reasonably practicable (and in any event within one hundred twenty (120) calendar days of their permitted transferees, as defined in the receipt of such registration rights agreementrequest), and (ii) effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Initiating the Holder’s Registrable Securities as are specified in such request together with the Registrable Securities requested to be included by any other Holders who notify the Company in writing within fifteen (15) days after receipt of such Request Notice from the Companyrequest; except provided, however, that the Company will shall not be obligated to effect any such registration, qualification or compliance compliance, pursuant to this Section 3(b) 1.8, if Form S-3 is not available for such offeringoffering by the Holder, in which case the Company shall file a registration statement respecting the Shares in accordance with the terms and provisions of Section 1.2.
(iia) If the Holder requests registration pursuant to this Section 1.8 intends to distribute the Registrable Securities covered by its request by means of an underwriting, it shall so advise the Company as part of its request made pursuant to this Section1.8 and the Company shall include such information in the written notice referred to in clause (a) of this Section 1.8. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder requesting registration. In such event, the right of the Holder to include its Registrable Securities in its sole discretion may condition such registration shall be conditioned upon the Holder’s participation in such underwriting and the inclusion of the Holder’s Registrable Securities in a Registration under this Section 3(b) the underwriting to the extent provided herein. The Holder upon the timely provision by proposing to distribute its securities through such Holder of such information as underwriting shall (together with the Company may reasonably request relating to as provided in Section 1.3(e)) enter into an underwriting agreement, or similar agreement, in customary form with the disclosure requirements underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of Item 507 this Section
1. 8, if the underwriter advises the Holder requesting registration in writing that marketing factors require a limitation of Regulation S-K (or any similar disclosure requirement applicable to such Registration).
(iii) The Company will be entitled to postpone (but not more than once in any 12-month period), for a reasonable period of time not in excess of 90 days (less the number of days the Company has postponed the filing of a registration statement pursuant to Section 3(a)(iii) or Section 3(c)(i)), the filing of a registration statement in accordance with this Section 3(b) or Section 3(a) if the Company notifies the Holders requesting Registration that, in the good faith judgment of the board of directors of the Company (in consultation with legal counsel and/or an investment banking firm of recognized national standing), such Registration and offering would reasonably be expected to materially and adversely affect or materially interfere with any bona fide material financing of the Company or any material transaction under consideration by the Company or would require disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially and adversely affect the Company. Such notice will contain a statement of the reasons for such postponement if able shares to be disclosed and an approximation underwritten, then the Holder agrees to reduce the number of the anticipated delay. If the Company so postpones the filing shares of a registration statement, the Initiating Holder will have the right to withdraw its request for Registration (and the Holders who have requested that their Registrable Securities provided, however, that the number of shares of Registrable Securities to be included in such Registration may withdraw such underwriting shall not be reduced unless all securities to be sold by or for the account of any stockholder, person or party other than an the Holder (including those shares to be sold for the Company’s account), are first entirely excluded from the underwriting. In the event that the number of securities being registered is reduced pursuant to this Section 1.8(a), the Holder of the Registrable Securities from such Registration) by giving written notice which were not included in the registration shall be treated as if there had been no registration effected pursuant to this Section 1.8 and shall be entitled to the Company benefit of Section 1.8 with respect to the Registrable Securities which were not included as if the registration pursuant to Section 1.8 had not been requested; provided, that any registration with respect to the Registrable Securities which were not included shall not be required to become effective within ten (10) 180 days of the anticipated termination effective date of the postponement period, as provided in the notice delivered first registration.
(b) Subject to the Holdersforegoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as reasonably practicable after receipt of the request or requests of the Holder. All expenses incurred in connection with a registration requested pursuant to this Section 1.8 (other than underwriting discounts and commissions), including all registration, filing, qualification, printer’s fees, accounting fees, reasonable fees and disbursements of one legal counsel for the Holder, and fees and disbursements of counsel for the Company, shall be borne by the Company.
Appears in 1 contract
Sources: Common Stock and Warrant Purchase Agreement (KFX Inc)
Form S-3 Registration. (ia) After If at any time (1) the Company is eligible to Register Registrable Securities on Form S-3, each shall receive from any Holder will have the right to demand, subject to the restrictions on the number or Holders of Demand Registrations in Section 3(a)(ii), Investors' Stock a written request or requests that the Company effect one or more Registrations with respect to a registration of all or a part any portion of its Registrable Securities the Investors' Stock on Form S-3 or any successor thereto, (2) the reasonably anticipated proceeds therefrom shall be at least $1,500,000 and (3) the Company is a registrant entitled to use Form S-3 or any successor thereto to register such shares, the Company will:
(i) promptly give written notice of the proposed registration, and any related qualification or compliance; except that no such demand right will apply , to Registrable Securities having an anticipated aggregate price to the public (before all other holders of any underwriting discounts and commissions) of less than $10,000,000, unless there shall be other Holders who have requested participation in such Registration who, in the aggregate with the Initiating Holder, shall have proposed Registration shares of Registrable Securities having an anticipated aggregate price Securities; and
(ii) use its reasonable best efforts to the public (before any underwriting discounts and commissions) of at least $10,000,000. Upon receipt of written request, the Company willeffect, as soon as reasonably practicable, such registration (i) give a Request Notice relating including, without limitation, the execution of an undertaking to file post effective amendments, appropriate qualifications under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the proposed registration to all other Holders, Securities Act and any other holders of Common Stock who executed a registration rights agreement on the date hereof (and any of their permitted transferees, as defined in such registration rights agreement), and (iigovernment requirements or regulations) effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Initiating Holder’s 's or Holders' Registrable Securities as are specified in such request request, together with all or such portion of the Registrable Securities, of any Holder or Holders of Registrable Securities requested to be included by any other Holders who notify the Company joining in writing such request as are specified in a written request given within fifteen thirty (1530) days after receipt of such Request Notice written notice from the Company; except that .
(b) Notwithstanding any other provision of this Section 3, if the Company will not be obligated to effect any such registration, qualification or compliance contemplated distribution pursuant to this Section 3(b3 shall be by means of an underwriting and if the underwriter advises the holders of Investors' Stock initiating the registration request hereunder ("INITIATING HOLDER(S)") that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holder(s) shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated, first, to the Holders of Registrable Securities other than the Founder's Stock, pro rata based on the number of shares of the Registrable Securities set forth in the requests made pursuant to Section 3(a) and then to the extent, if Form S-3 is not available for any, advised by the managing underwriter, among all Holders of Founder's Stock requesting registration hereunder, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each such offeringother Holder.
(iic) The Company in its sole discretion may condition shall not, pursuant to Section 3(a), be obligated to (i) effect more than three (3) such registrations for the inclusion of Registrable Securities in Investors, or (ii) effect more than one such registration per 180-day period; provided, however, that a Registration registration shall not be counted as a registration under this Section 3(b3 unless such registration statement shall include at least thirty percent (30%) upon of the timely provision by Registrable Securities other than Founder's Stock for which such Holder of such information as registration has been requested; and further provided, that if the Initiating Holders withdraw their request for registration during a deferral period under Section 3(c) hereof, the Company may reasonably shall pay the Registration Expenses therefor, and such expenses shall not be debited against Registration Expense allotments for ensuing registrations hereunder, and such withdrawal request relating to shall not be counted towards the disclosure requirements number of Item 507 of Regulation S-K (or any similar disclosure requirement applicable to such Registration)S-3 registration permitted hereunder.
(iiid) The Company will be entitled to postpone (but not more than once in any 12-month period)Notwithstanding the foregoing, for a reasonable period of time not in excess of 90 days (less the number of days if the Company has postponed the filing of shall furnish to Holders requesting a registration statement pursuant to Section 3(a)(iii) or Section 3(c)(i)), the filing of a registration statement in accordance with this Section 3(b) or Section 3(a) if 3, a certificate signed by the President of the Company notifies the Holders requesting Registration that, stating that in the good faith judgment of the board Board of directors Directors of the Company (in consultation with legal counsel and/or an investment banking firm of recognized national standing)Company, such Registration and offering it would reasonably be expected seriously detrimental to materially and adversely affect or materially interfere with any bona fide material financing of the Company or any material transaction under consideration by the Company or would require disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially and adversely affect the Company. Such notice will contain a statement of the reasons its stockholders for such postponement if able registration statement to be disclosed filed and an approximation of the anticipated delay. If the Company so postpones it is therefore essential to defer the filing of a such registration statement, the Initiating Holder will Company shall have the right to defer taking action with respect to such filing for a period of not more than 90 days after receipt of the request of the Initiating Holders. During any such deferral period, the Initiating Holders may withdraw its their request, in which case the Initiating Holders will not have been deemed to have made a request for Registration (and the Holders who have requested that their Registrable Securities be included in such Registration may withdraw such Registrable Securities from such Registration) by giving written notice to the Company within ten (10) days of the anticipated termination date of the postponement period, as provided in the notice delivered to the Holdersregistration under this Section 3.
Appears in 1 contract
Form S-3 Registration. (ia) After Notwithstanding anything in Section 2.1 or Section 2.2 to the contrary, in case the Company is eligible to Register Registrable Securities on Form S-3, each Holder will have the right to demand, subject to the restrictions on the number of Demand Registrations in Section 3(a)(ii), shall receive from any ▇▇▇▇▇ Registration Party or any SL Registration Party a written request or requests that the Company effect one a registration on Form S-3 and any related qualification or more Registrations compliance with respect to all or a part of its the Registrable Securities on owned by such Registration Party (which shall not constitute a Demand), and the Company is then eligible to use Form S-3 for the resale of Registrable Securities, the Company shall:
(1) as promptly as reasonably practicable, give written notice of the proposed registration, and any related qualification or compliance; except that no such demand right will apply to Registrable Securities having an anticipated aggregate price to the public (before any underwriting discounts and commissions) of less than $10,000,000, unless there shall be other Holders who have requested participation in such Registration who, in the aggregate with the Initiating Holder, shall have proposed Registration of Registrable Securities having an anticipated aggregate price to the public (before any underwriting discounts and commissions) of at least $10,000,000. Upon receipt of written request, the Company will, as soon as practicable, (i) give a Request Notice relating to the proposed registration to all other Holders; and
(2) as promptly as reasonably practicable, file and any other holders of Common Stock who executed a registration rights agreement on the date hereof (and any of their permitted transferees, as defined in such registration rights agreement), and (ii) use reasonable best efforts to effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Initiating HolderRegistration Party’s Registrable Securities as are specified in such request request, together with all or such portion of the Registrable Securities requested to be included by of any other Holders who notify the Company Holder joining in writing such request as are specified in a written request given within fifteen (15) 15 days after receipt of such Request Notice written notice from the Company; except provided, that the Company will shall not be obligated to effect any such registration, qualification or compliance pursuant to this Section 3(b2.3 (or, with respect to a request under Section 2.4, any Shelf Take-Down pursuant to Section 2.4):
(A) if Form S-3 is not available for such offering.offering by the Registration Parties;
(B) solely with respect to filing and causing the effectiveness of a registration on Form S-3 or effecting a Marketed Underwritten Shelf Take-Down, if the Registration Parties, together with the Holders of any Registrable Securities entitled to inclusion in such registration (or Marketed Underwritten Shelf Take-Down, as applicable), propose to sell Registrable Securities at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $50 million;
(C) if (i) the board of directors of the Company determines in good faith after consultation with outside counsel that such Form S-3 registration would cause the Company to disclose material non-public information, which disclosure (x) would be required to be made in any registration statement so that such registration statement would not be materially misleading, (y) would not be required to be made at such time but for the filing or effectiveness of such registration statement and (z) would be materially detrimental to the Company or would materially interfere with any material financing, acquisition, corporate reorganization or merger or other similar transaction involving the Company or any of its Subsidiaries, and that, as a result of such potential disclosure or interference, it is in the best interests of the Company to defer the filing or effectiveness of such registration statement (or, with respect to a Shelf Take-Down under Section 2.4, the sale of securities of the Company pursuant to such Form S-3 registration statement) at such time, and (ii) The the Company in its sole discretion may condition furnishes to the inclusion Registration Parties a certificate signed by the chief executive officer of Registrable Securities in the Company to that effect, then the Company shall have the right to defer such filing of the Form S-3 registration statement (or Shelf Take-Down) for a period of not more than 120 days after receipt of the request of the Registration Party under this Section 3(b) upon the timely provision by such Holder of such information 2.3 (or Section 2.4, as applicable); provided, that the Company may reasonably request relating to shall not use this right, together with any other deferral or suspension of the disclosure requirements of Item 507 of Regulation S-K (Company’s obligations under Section 2.1 or any similar disclosure requirement applicable to such Registration).
(iii) The Company will be entitled to postpone (but not Section 2.3, more than once in any 12-month period), for a reasonable . The Company shall as promptly as reasonably practicable notify the Selling Holders of the expiration of any period of time not in excess of 90 days (less the number of days the Company has postponed the filing of a registration statement pursuant to Section 3(a)(iii) or Section 3(c)(i)), the filing of a registration statement in accordance with during which it exercised its rights under this Section 3(b) or Section 3(a) if the 2.3(a)(2)(C). The Company notifies the Holders requesting Registration agrees that, in the event it exercises its rights under this Section 2.3(a)(2)(C), it shall, as promptly as reasonably practicable following the expiration of the applicable deferral period, file or update and use its reasonable best efforts to cause the effectiveness of, as applicable, the applicable deferred registration statement (or Shelf Take-Down);
(D) solely with respect to filing and causing the effectiveness of a registration on Form S-3, subject to Section 2.3(d), if the Company has, within the 120-day period preceding the date of such request, already effected one registration on Form S-3 for a Registration Party pursuant to this Section 2.3 (but, for the avoidance of doubt, regardless of whether any Shelf Take-Downs have been effected during such period); provided, that any such registration shall be deemed to have been “effected” if the registration statement relating thereto (x) has become or been declared or ordered effective under the Securities Act, and any of the Registrable Securities of the Registration Party included in such registration have actually been sold thereunder, and (y) has remained effective for a period of at least 180 days in the case of a registration on Form S-3 for a ▇▇▇▇▇ Registration Party or a SL Registration Party; or
(E) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(b) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities so requested to be registered, as promptly as reasonably practicable, after receipt of the request or requests of the Registration Party and the other Holders (the “Form S-3 Registration Statement”) and any such Holder may request inclusion of a plan of distribution in accordance with Section 2.7(i) and/or that such Form S-3 Registration Statement constitute a shelf offering on a delayed or continuous basis in accordance with Rule 415 under the Securities Act (a “Form S-3 Shelf Registration Statement”), in which case the provisions of Section 2.4 shall also be applicable.
(c) If the ▇▇▇▇▇ Registration Parties or the SL Registration Parties intend to distribute the Registrable Securities covered by their request under this Section 2.3 by means of a Marketed Underwritten Shelf Take-Down pursuant to Section 2.4(b), they shall so advise the Company as a part of their request made pursuant to this Section 2.3 and, subject to the limitations set forth in Section 2.3(a), the Company shall include such information in the written notice referred to in Section 2.3(a). In such event, the right of any Holder to include Registrable Securities in such registration (or Underwritten Shelf Take-Down, as applicable) shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise agreed by the Holders with a majority of the Registrable Securities participating in the registration and by the requesting Registration Party) to the extent provided in this Agreement. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 2.7) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 2.3 or Section 2.4, if the lead underwriter or managing underwriter advises the Company in writing (with a copy to each Selling Holder) that, in such firm’s good faith judgment view, the number of Registrable Securities and Other Securities requested to be included in such offering exceeds the number which can be sold in such offering without being likely to have a significant adverse effect upon the price, timing or distribution of the board of directors offering and sale of the Registrable Securities and Other Securities then contemplated, the Company shall include in such offering:
(1) first, Registrable Securities owned by the ▇▇▇▇▇ Registration Parties and the SL Registration Parties that are requested to be included in consultation with legal counsel and/or an investment banking firm such offering pursuant to Section 2.3 and Section 2.4 and that can be sold without having the significant adverse effect referred to above, pro rata on the basis of recognized national standing)the relative number of such Registrable Securities owned by the ▇▇▇▇▇ Registration Parties and the SL Registration Parties seeking such inclusion in such offering; provided, that until and including the Cutback Trigger Offering, such Registrable Securities that are allocable to the Registration Parties in the aggregate pursuant to the preceding portion of this clause (1) shall be allocated among the Registration Parties as follows: (x) first, 50% to the ▇▇▇▇▇ Registration Parties seeking inclusion in such offering and 50% to the SL Registration Parties seeking inclusion in such offering, until either such ▇▇▇▇▇ Registration Parties, on the one hand, or such SL Registration Parties, on the other hand, have been allocated all their Registrable Securities sought or requested to be included in such offering, and (y) thereafter, 100% to the remaining Registration Parties seeking or requesting inclusion in such offering;
(2) second, Registrable Securities owned by the Other Holders that are requested to be included in such offering would reasonably pursuant to Section 2.3 and Section 2.4 and that can be expected sold without having the significant adverse effect referred to materially above, pro rata on the basis of the relative number of such fully vested Registrable Securities owned by the Other Holders seeking inclusion in such offering; and
(3) third, the Other Securities owned by any holder thereof with a contractual right to include such Other Securities in such offering that can be sold without having the significant adverse effect referred to above, pro rata on the basis of the relative number of such fully vested Other Securities owned by the Persons seeking inclusion in such offering.
(d) Notwithstanding the foregoing, if the Company shall receive from any Holders of Registrable Securities then outstanding a written request or requests under Section 2.3 that the Company effect a registration statement on Form S-3 that includes only those items and adversely affect that information that is required to be included in parts I and II of such Form, and does not include any additional or materially interfere with any bona fide material financing extraneous items of information (e.g., a lengthy description of the Company or the Company’s business) (an “Ordinary S-3 Registration Statement”), then Section 2.3(a)(2)(D) shall not apply to such Ordinary S-3 Registration Statement request.
(e) Upon the written request of any material transaction under consideration by ▇▇▇▇▇ Registration Party or SL Registration Party (which shall not constitute a Demand), prior to the expiration of effectiveness of any existing Form S-3 Shelf Registration Statement in accordance with Rule 415, the Company or would require disclosure shall file and seek the effectiveness of information that has not been, and is not otherwise required a new Form S-3 Shelf Registration Statement in order to be, disclosed to permit the public, the premature disclosure of which would materially and adversely affect the Company. Such notice will contain a statement continued offering of the reasons for such postponement if able to be disclosed and an approximation of the anticipated delay. If the Company so postpones the filing of a registration statement, the Initiating Holder will have the right to withdraw its request for Registration (and the Holders who have requested that their Registrable Securities be included in under such existing Form S-3 Shelf Registration may withdraw such Registrable Securities from such Registration) by giving written notice to the Company within ten (10) days of the anticipated termination date of the postponement period, as provided in the notice delivered to the HoldersStatement.
Appears in 1 contract
Sources: Registration Rights Agreement (Virtu Financial, Inc.)
Form S-3 Registration. (i) After 2.2.1 As soon as practicable following written request of the Company is eligible to Register Registrable Securities on Form S-3, each Holder will have the right to demand, subject to the restrictions on the number of Demand Registrations in Section 3(a)(ii), that the Company effect one or more Registrations with respect to all or a part of its Registrable Securities on Form S-3 and any related qualification or compliance; except that no such demand right will apply to Registrable Securities having an anticipated aggregate price to the public (before any underwriting discounts and commissions) of less than $10,000,000, unless there shall be other Holders who have requested participation in such Registration who, in the aggregate with the Initiating Holder, FCG shall have proposed Registration of Registrable Securities having an anticipated aggregate price to the public (before any underwriting discounts and commissions) of at least $10,000,000. Upon receipt of written request, the Company will, as soon as practicable, (i) give a Request Notice relating to the proposed registration to all other Holders, and any other holders of Common Stock who executed a registration rights agreement on the date hereof (and any of their permitted transferees, as defined in such registration rights agreement), and (ii) effect such registration and all such qualifications and compliances as may be so requested and as would required to permit or facilitate the sale and distribution of all or such portion of such Initiating Holder’s 's Registrable Securities as are specified in such request together with the Registrable Securities requested to be included by any other Holders who notify the Company in writing within fifteen (15) days after receipt of such Request Notice from the CompanySecurities; except provided, however, that the Company will FCG shall not be obligated to effect any such registration, qualification or compliance pursuant to this Section 3(b2.1: (i) if Form S-3 is not available for such offering.
offering by Holder, (ii) The Company if Holder, together with the holders of any other securities of FCG entitled to inclusion in its sole discretion may condition the inclusion of such registration, propose to sell Registrable Securities in a Registration under this Section 3(b) upon the timely provision by such Holder of such information as the Company may reasonably request relating at an aggregate price to the disclosure requirements public of Item 507 of Regulation S-K (or any similar disclosure requirement applicable to such Registration).
less than $500,000, (iii) The Company will be entitled if FCG shall furnish to postpone (but not more than once in any 12-month period), for Holder a reasonable period certificate signed by the Chief Executive Officer of time not in excess of 90 days (less the number of days the Company has postponed the filing of a registration statement pursuant to Section 3(a)(iii) or Section 3(c)(i)), the filing of a registration statement in accordance with this Section 3(b) or Section 3(a) if the Company notifies the Holders requesting Registration that, FCG stating that in the good faith judgment of the board of directors of the Company (in consultation with legal counsel and/or an investment banking firm of recognized national standing)FCG, such Registration it would be seriously detrimental to FCG and offering would reasonably be expected to materially and adversely affect or materially interfere with any bona fide material financing of the Company or any material transaction under consideration by the Company or would require disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially and adversely affect the Company. Such notice will contain a statement of the reasons its stockholders for such postponement if able Form S-3 Registration to be disclosed and an approximation of the anticipated delay. If the Company so postpones the filing of a registration statementeffected at such time, the Initiating Holder will in which event FCG shall have the right to withdraw defer the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of Holder's written request, or (iv) in any particular jurisdiction in which FCG would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
2.2.2 Notwithstanding any other provision of this Agreement, Holder understands that there may be periods during which the FCG's Board of Directors may determine, in good faith, that it is in the best interest of FCG and its request for Registration (stockholders to defer disclosure of non-public information until such information has reached a more advanced stage and that during such periods sales of Registrable Securities and the Holders who have requested that their effectiveness of any registration statement covering Registrable Securities may be included in suspended or delayed. Each Holder of Registrable Securities agrees that upon receipt of any notice from FCG of the development of any non-public information, such Registration may withdraw holder will forthwith discontinue such holder's disposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities from until such Registrationholder's receipt of copies of an appropriately supplemented or amended prospectus and, if so directed by FCG, such holder will use its best efforts to deliver to FCG (at FCG's expense) by giving written notice to the Company within ten (10) days all copies, other than permanent file copies then in such holder's possession, of the anticipated termination prospectus relating to such Registrable Securities current at the time of receipt of such notice. In the event FCG shall give any such notice, the applicable time period during which a Registration Statement is to remain effective shall be extended by the number of days during the period from and including the date of the postponement period, as provided in giving of such notice to and including the notice delivered to date when each seller of a Registrable Security covered by such registration statement shall have received the Holders.copies of the appropriate supplemented or amended
Appears in 1 contract
Sources: Registration Rights Agreement (First Consulting Group Inc)
Form S-3 Registration. (i) After the Company If Cynat or Genaderm is eligible to Register Registrable use Form S-3 under the Securities Act (or any similar successor form) and shall receive from a Purchaser and its permitted transferees (the "S-3 Initiating Holders") a written request or requests that such company effect a registration on such Form S-3, each Holder will have including without limitation, pursuant to Rule 415 of the right to demand, subject to the restrictions on the number of Demand Registrations in Section 3(a)(ii), that the Company effect one Securities Act and any related qualification or more Registrations compliance with respect to all or a part of its the Cynat Registrable Securities or the Genaderm Registrable Securities, whichever is applicable, owned by the S-3 Initiating Holders and its permitted transferees (provided, that the S-3 Initiating Holders registering such securities in such registration (together with all other holders of such securities to be included in such registration) propose to sell their securities at an aggregate price (calculated based upon the Market Price of the securities on the date of filing of the Form S-3 with respect to such securities) to the public of no less than the lesser of $5,000,000 or the remaining Cynat Registrable Securities or Genaderm Registrable Securities, whichever is applicable), the Company shall use its reasonable best efforts to cause Cynat or Genaderm, whichever is applicable, (i) promptly to give written notice of the proposed registration, and any related qualification or compliance; except that no such demand right will apply , to all other holders of the Cynat Registrable Securities having an anticipated aggregate price to or the public Genaderm Registrable Securities, whichever is applicable; and (before any underwriting discounts and commissionsii) of less than $10,000,000, unless there shall be other Holders who have requested participation in such Registration who, in the aggregate with the Initiating Holder, shall have proposed Registration of Registrable Securities having an anticipated aggregate price to the public (before any underwriting discounts and commissions) of at least $10,000,000. Upon receipt of written request, the Company will, as soon as practicable, (i) give a Request Notice relating use reasonable best efforts to the proposed registration to all other Holders, file and any other holders of Common Stock who executed a registration rights agreement on the date hereof (and any of their permitted transferees, as defined in such registration rights agreement), and (ii) effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Initiating Holder’s the Cynat Registrable Securities or the Genaderm Registrable Securities, whichever is applicable, as are specified in such request request, together with all or such portion of the Cynat Registrable Securities requested to be included by or Genaderm Registrable Securities, whichever is applicable, of any other Holders who notify holder in the Company group of holders joining in writing such request as is specified in a written request given within fifteen (15) days after the holder's receipt of such Request Notice written notice from the Company; except that the Company will not be obligated to effect . No registration requested by any such registration, qualification or compliance S-3 Initiating Holders pursuant to this Section 3(b) if Form S-3 is not available for such offering.
(ii) The Company in its sole discretion may condition the inclusion of Registrable Securities in a Registration under this Section 3(b) upon the timely provision by such Holder of such information as the Company may reasonably request relating to the disclosure requirements of Item 507 of Regulation S-K (or any similar disclosure requirement applicable to such Registration).
(iii) The Company will 1.3 shall be entitled to postpone (but not more than once in any 12-month period), for a reasonable period of time not in excess of 90 days (less the number of days the Company has postponed the filing of deemed a registration statement pursuant to Section 3(a)(iii) or Section 3(c)(i)), the filing of a registration statement in accordance with this Section 3(b) or Section 3(a) if the Company notifies the Holders requesting Registration that, in the good faith judgment of the board of directors of the Company (in consultation with legal counsel and/or an investment banking firm of recognized national standing), such Registration and offering would reasonably be expected to materially and adversely affect or materially interfere with any bona fide material financing of the Company or any material transaction under consideration by the Company or would require disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially and adversely affect the Company. Such notice will contain a statement of the reasons for such postponement if able to be disclosed and an approximation of the anticipated delay. If the Company so postpones the filing of a registration statement, the Initiating Holder will have the right to withdraw its request for Registration (and the Holders who have requested that their Registrable Securities be included in such Registration may withdraw such Registrable Securities from such Registration) by giving written notice to the Company within ten (10) days of the anticipated termination date of the postponement period, as provided in the notice delivered to the Holders1.1.
Appears in 1 contract
Sources: Registration Rights Agreement (Bioaccelerate Holdings Inc)
Form S-3 Registration. (i) After the Company is eligible SCC shall use its reasonable best efforts to Register Registrable Securities remain qualified for registration on Form S-3. As long as SCC remains qualified for the use of Form S- 3, each Holder will in addition to the rights contained in Section 4.04, one or more Holders or holders of other securities which may be entitled to inclusion in a registration by SCC on Form S-3 shall have the right to demand, subject to the restrictions request registration on Form S-3 (all such requests shall be in writing and shall state the number of Demand Registrations in Section 3(a)(iishares of Registrable Securities or other securities to be disposed of and the intended methods of disposition of such shares by such Holders or other holders); PROVIDED, HOWEVER, that the Company effect one or more Registrations no request will be honored with respect to all or any proposed S-3 offering which would not include at least 1,000,000 SCC Shares. In case SCC shall receive from Holders a part of its Registrable Securities written request that SCC effect a registration on Form S-3 and any related state securities qualification or blue sky compliance with respect to such an amount of the Registrable Securities owned by such Holders, SCC shall:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; except that no such demand right will apply to Registrable Securities having an anticipated aggregate price to the public and
(before any underwriting discounts and commissionsb) of less than $10,000,000, unless there shall be other Holders who have requested participation in such Registration who, in the aggregate with the Initiating Holder, shall have proposed Registration of Registrable Securities having an anticipated aggregate price to the public (before any underwriting discounts and commissions) of at least $10,000,000. Upon receipt of written request, the Company will, as soon as practicable, (i) give a Request Notice relating use its reasonable best efforts to the proposed registration to all other Holders, and any other holders of Common Stock who executed a registration rights agreement on the date hereof (and any of their permitted transferees, as defined in such registration rights agreement), and (ii) effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Initiating Holder’s Holders' Registrable Securities as are specified in such request request, together with all or such portion of the Registrable Securities requested to be included by of any other Holders who notify the Company joining in writing such request as are specified in a written request given within fifteen twenty (1520) days after receipt of such Request Notice written notice from the CompanySCC; except PROVIDED, HOWEVER, that the Company will SCC shall not be obligated to effect any such registration, qualification qualification, or compliance pursuant to this Section 3(b4.05: (i) if Form S-3 is not available for such offering.
offering by Holders; (ii) The Company if SCC has, within the twelve (12) month period preceding the date of such request, already effected one registration on Form S-3 pursuant to this Section 4.05; or (iii) in its sole discretion any jurisdiction in which SCC would be required to execute a general consent to service of process in effecting such registration, qualification, or compliance unless SCC is already subject to service in such jurisdiction and except as may condition be required by the Securities Act. Subject to the foregoing, SCC shall effect such registration, qualification, or compliance (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Holders. If any registration to be effected pursuant to this Section 4.05 is to be an underwritten public offering, it shall be managed by an underwriter or underwriters acceptable to SCC and selected by a majority in interest of the Holders and other holders requesting registration. In such event, the right of any Holder to registration pursuant to this Section 4.05 shall be conditioned upon the participation by such Holder in such underwriting and the inclusion of the Registrable Securities in a Registration under this Section 3(b) upon the timely provision by of such Holder of such information as in the Company may reasonably request relating underwriting to the disclosure requirements extent provided herein. If the managing underwriter so selected determines that marketing factors require a limitation of Item 507 of Regulation S-K (or any similar disclosure requirement applicable to such Registration).
(iii) The Company will be entitled to postpone (but not more than once in any 12-month period), for a reasonable period of time not in excess of 90 days (less the number of days the Company has postponed the filing of a registration statement pursuant shares to Section 3(a)(iii) or Section 3(c)(i))be underwritten, the filing of a registration statement in accordance with this Section 3(b) or Section 3(a) if managing underwriter may limit the Company notifies the Holders requesting Registration that, in the good faith judgment of the board of directors of the Company (in consultation with legal counsel and/or an investment banking firm of recognized national standing), such Registration and offering would reasonably be expected to materially and adversely affect or materially interfere with any bona fide material financing of the Company or any material transaction under consideration by the Company or would require disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially and adversely affect the Company. Such notice will contain a statement of the reasons for such postponement if able to be disclosed and an approximation of the anticipated delay. If the Company so postpones the filing of a registration statement, the Initiating Holder will have the right to withdraw its request for Registration (and the Holders who have requested that their Registrable Securities held by such Holders and other holders to be included in such Registration may withdraw registration. SCC shall so advise such Holders and other holders, and the number of shares of Registrable Securities from such Registration) by giving written notice that may be included in the registration shall be allocated among the Holders of Registrable Securities and other holders pro rata, in proportion to the Company within ten (10) days respective amounts of Registrable Securities and other securities entitled to inclusion in such registration held by such Holders and other holders at the time of the anticipated termination date filing of the postponement period, as provided in registration statement. Any Registrable Securities that are so excluded from the notice delivered underwriting shall be excluded from the registration. As used throughout this Section the term "Form S-3" shall be deemed to include any equivalent successor form for registration pursuant to the HoldersAct.
Appears in 1 contract
Sources: Stockholders' Agreement (Security Capital Corp/De/)
Form S-3 Registration. (ia) After If the Company is eligible to Register Registrable Securities on Form S-3, each Holder will have receives a written request from the right to demand, subject to the restrictions on the number of Demand Registrations in Section 3(a)(ii), Initiating Holders that the Company effect one or more Registrations with respect to all or file a part of its Registrable Securities registration statement on Form S-3 and any related qualification or compliance; except that no such demand right will apply to Registrable under the Securities having an anticipated aggregate price to Act covering the public (before any underwriting discounts and commissions) of less than $10,000,000, unless there shall be other Holders who have requested participation in such Registration who, in the aggregate with the Initiating Holder, shall have proposed Registration registration of Registrable Securities having an anticipated aggregate offering price to the public (before any underwriting discounts and commissions) in excess of at least $10,000,000. Upon receipt of written request1,000,000, then the Company will, within 10 days of the receipt thereof, give written notice of such request to all other Holders and effect, as soon as practicable, the registration on Form S-3 under the Securities Act of all Registrable Securities that the Holders request to be registered.
(ib) give If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they will so advise the Company as a Request Notice relating to the proposed registration to all other Holders, and any other holders of Common Stock who executed a registration rights agreement on the date hereof (and any part of their permitted transfereesrequest made pursuant to this Section 2.3 and the Company will include such information in the written notice referred to in Section 2.3(a). In such event, as defined the right of any Holder to include its Registrable Securities in such registration rights agreementwill be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting will enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters will be reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company will so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and (ii) effect the number of shares that may be included in the underwriting will be allocated to the Holders of such registration and Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such qualifications and compliances as may be so requested and as would permit or facilitate Holders (including the sale and distribution of all or such portion of such Initiating Holder’s Holders). Any Registrable Securities as are specified in excluded or withdrawn from such request together with the Registrable Securities requested to underwriting will be included by any other Holders who notify the Company in writing within fifteen (15) days after receipt of such Request Notice withdrawn from the Company; except that the registration.
(c) The Company will not be obligated required to effect any such registration, qualification or compliance more than one (1) registration pursuant to this Section 3(b2.3 per any twelve (12) if month period or if:
(1) Form S-3 (or any similar form) is not available for such offering.offering by the Holders, or
(ii2) The Company in its sole discretion may condition the inclusion of Registrable Securities in a Registration under this Section 3(b) upon the timely provision by such Holder of such information as the Company may reasonably request relating furnishes to the disclosure requirements Holders a certificate signed by the Board of Item 507 of Regulation S-K (or any similar disclosure requirement applicable to such Registration).
(iii) The Company will be entitled to postpone (but not more than once in any 12-month period), for a reasonable period of time not in excess of 90 days (less the number of days the Company has postponed the filing of a registration statement pursuant to Section 3(a)(iii) or Section 3(c)(i)), the filing of a registration statement in accordance with this Section 3(b) or Section 3(a) if the Company notifies the Holders requesting Registration that, Directors stating that in the good faith judgment of the board Board of directors Directors of the Company (in consultation with legal counsel and/or an investment banking firm of recognized national standing)Company, such Registration and offering it would reasonably be expected seriously detrimental to materially and adversely affect or materially interfere with any bona fide material financing of the Company or any material transaction under consideration by and its shareholders for such registration to be effected at such time, in which event the Company or would require disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially and adversely affect the Company. Such notice will contain a statement of the reasons for such postponement if able to be disclosed and an approximation of the anticipated delay. If the Company so postpones the filing of a registration statement, the Initiating Holder will have the right to withdraw its defer such filing for a period of not more than 120 days after receipt of the request for Registration (and of the Holders who have requested Initiating Holders; provided that their Registrable Securities such right to delay a request will be included in such Registration may withdraw such Registrable Securities from such Registration) exercised by giving written notice to the Company within ten (10) days of the anticipated termination date of the postponement nor more than once in any one-year period, as provided in the notice delivered to the Holders.
Appears in 1 contract
Sources: Investors Rights Agreement (Oregon Baking Co Dba Marsee Baking)
Form S-3 Registration. (ia) After The Company will use its best efforts to maintain its qualification for the registration of its securities on Form S-3 (or a successor form which allows inclusion or incorporation of substantial information by reference to other documents filed with the SEC). During any period in which the Company is eligible to Register Registrable Securities on Form S-3so qualified, each any Holder will shall have the right to demand, subject to the restrictions on the request an unlimited number of Demand Registrations in Section 3(a)(ii), that the Company effect one or more Registrations with respect to all or a part registrations of its Registrable Securities on Form S-3 and any related qualification (or compliance; except that no such demand right will apply to Registrable Securities having an anticipated aggregate price to the public successor form), subject only to: (before any underwriting discounts and commissionsi) of less than $10,000,000, unless there shall be other Holders who have requested participation in such Registration who, in the aggregate compliance with the Initiating Holder, shall have proposed Registration procedures specified in SECTION 3.2(b); (ii) the requirement that the Holders requesting such registration propose to dispose of Registrable Securities having an anticipated aggregate proposed offering price to the public (before any underwriting discounts and commissions) of at least not less than $10,000,000. Upon receipt of written request, the Company will, as soon as practicable, (i) give a Request Notice relating to the proposed registration to all other Holders, and any other holders of Common Stock who executed a registration rights agreement on the date hereof (and any of their permitted transferees, as defined in such registration rights agreement), 1,000,000; and (iiiii) effect the limitation that the Holders may not demand more than TWO (2) such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Initiating Holder’s Registrable Securities as are specified in such request together with the Registrable Securities requested to be included by registrations on Form S-3 under this SECTION 3.3 during any other Holders who notify the Company in writing within fifteen TWELVE (1512) days after receipt of such Request Notice from the Companymonth period; except PROVIDED, HOWEVER, that the Company will not be required to include in any such registration any shares of Indigo Common Stock if the registration statement in respect of such registration becomes effective prior to the termination of the Indigo Selling Restricted Period. The Company shall promptly give notice to all Holders of the receipt of a request for registration pursuant to this SECTION 3.3 and shall provide a reasonable opportunity for other Holders to participate in the registration. Subject to the foregoing, the Company will use its diligent best efforts promptly to effect the registration (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualifications under blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements and regulations) of all Registrable Securities on Form S-3 to the extent requested by the Holder or Holders thereof.
(b) Notwithstanding the foregoing, the Company shall not be obligated to effect take any action pursuant to this SECTION 3.3: (i) during the period starting with the date SIXTY (60) days prior to the filing of, and ending on a date SIX (6) months following the effective date of, a registration statement filed or to be filed by the Company (other than a registration relating solely to employee stock option, stock purchase or similar plans, a registration relating solely to an SEC Rule 145 Transaction or any other registration which is not appropriate for the registration of Registrable Securities), PROVIDED that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; (ii) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance pursuant to this Section 3(b) if Form S-3 is not available for such offering.
(ii) The Company in its sole discretion may condition the inclusion of Registrable Securities in a Registration under this Section 3(b) upon the timely provision by such Holder of such information as unless the Company is already subject to service in such jurisdiction and except as may reasonably request relating to be required by the disclosure requirements of Item 507 of Regulation S-K (Securities Act; or any similar disclosure requirement applicable to such Registration).
(iii) The Company will be entitled to postpone (but not more than once in any 12-month period), for a reasonable period of time not in excess of 90 days (less the number of days the Company has postponed the filing of a registration statement pursuant to Section 3(a)(iii) or Section 3(c)(i)), the filing of a registration statement in accordance with this Section 3(b) or Section 3(a) if the Company notifies shall furnish to the Holders requesting Registration that, such registration a certificate signed by the CEO or the President of the Company stating that in the good faith judgment of the board of directors of Board it would be seriously detrimental to the Company (in consultation with legal counsel and/or an investment banking firm of recognized national standing), such Registration and offering would reasonably be expected to materially and adversely affect or materially interfere with any bona fide material financing of the Company or any material transaction under consideration by the Company or would require disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially and adversely affect the Company. Such notice will contain a statement of the reasons its stockholders for such postponement if able registration statement to be disclosed filed at the date filing would be required hereunder and an approximation of the anticipated delay. If the Company so postpones that it is therefore essential to defer the filing of a such registration statement, in which event the Initiating Holder will have Company's obligation to use its diligent best efforts to file a registration statement shall be deferred for a period not to exceed NINETY (90) days from the receipt of the request to file such registration; PROVIDED, that the Company shall not exercise such right to withdraw its request for Registration defer a filing more than once in any TWELVE (and the Holders who have requested that their Registrable Securities be included in such Registration may withdraw such Registrable Securities from such Registration12) by giving written notice to the Company within ten (10) days of the anticipated termination date of the postponement month period, as provided in the notice delivered to the Holders.
Appears in 1 contract