Required Registrations. (a) At any time after the earlier of (i) the fourth (4th) anniversary of the date of this Agreement or (ii) six (6) months after the closing of the Qualifying Public Offering, a Purchaser or Purchasers holding in the aggregate at least twenty percent (20%) of the Registrable Shares may together request, in writing, that the Company effect the registration on Form S-1 (or any successor form) of Registrable Shares having an aggregate anticipated offering price, net of underwriting discounts and commissions, of at least $5,000,000 (based on the market price or fair value on the date of such request). The Company shall not be required to effect more than two (2) registrations (that have been declared and ordered effective by the Commission) pursuant to this Section 2.1(a). (b) At any time after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), a Purchaser or Purchasers holding at least ten percent (10%) of the Registrable Shares may request, in writing, that the Company effect the registration on Form S-3 (or such successor form) of Registrable Shares having an aggregate anticipated offering price of at least $2,000,000. The Company shall not be required to effect more than two (2) registrations in any twelve (12) month period pursuant to this Section 2.1(b). (c) Upon receipt of any request for registration pursuant to this Section 2.1, the Company shall promptly give written notice of such proposed registration to all Purchasers other than the Initiating Holders. Such Purchasers shall have the right, by giving written notice to the Company within thirty (30) days after the Company provides its notice, to elect to have included in such registration such of their Registrable Shares as such Purchasers may request in such notice of election, subject in the case of an underwritten offering to the terms of Section 2.1(d). Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration on an appropriate registration form of all Registrable Shares which the Company has been requested to so register; provided, however, that in the case of a registration requested under Section 2.1(b), the Company will only be obligated to effect such registration on Form S-3 (or any successor form). (d) If the Initiating Holders intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 2.1(a) or (b), as the case may be, and the Company shall include such information in its written notice referred to in Section 2.1(c). In such event, the right of any other Purchaser to include its Registrable Shares in such registration pursuant to Section 2.1(a) or (b), as the case may be, shall be conditioned upon such other Purchaser’s participation in such underwriting on the terms set forth herein. All Purchasers including Registrable Shares in such registration shall enter into an underwriting agreement upon customary terms with the underwriter or underwriters selected for such underwriting by the Company and approved by a majority of the Initiating Holders, which such approval will not be unreasonably withheld, conditioned, or delayed; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of the Purchasers materially greater than the obligations of the Purchasers pursuant to Section 2.5. If any Purchaser who has requested inclusion of its Registrable Shares in such registration as provided above disapproves of the terms of the underwriting, such Purchaser may elect, by written notice to the Company, to withdraw its Registrable Shares from such Registration Statement and underwriting. If the managing underwriter advises the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Shares to be included in the Registration Statement and underwriting shall be allocated among all Purchasers requesting registration in proportion, as nearly as practicable, to the respective number of Registrable Shares held by them on the date of the request for registration made by the Initiating Holders pursuant to Section 2.1(a) or (b), as the case may be; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. If any Purchaser would thus be entitled to include more Registrable Shares than such Purchaser requested to be registered, the excess shall be allocated among other requesting Purchasers pro rata in the manner described in the preceding sentence. (e) The Company shall not be required to effect any registration within six (6) months after the effective date of the Registration Statement relating to the Qualifying Public Offering. For purposes of this Section 2.1(e), a Registration Statement shall not be counted if, as a result of an exercise of the underwriter’s cut-back provisions, less than thirty-five percent (35%) of the total number of Registrable Shares that Purchasers have requested to be included in such Registration Statement are so included. (f) If at the time of any request to register Registrable Shares by Initiating Holders pursuant to this Section 2.1, the Company is engaged or has plans to engage in a registered public offering or is engaged in any other activity which, in the good faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option direct that such request be delayed for a period not in excess of ninety (90) days from the date of such request, such right to delay a request to be exercised by the Company not more than twice in any twelve (12) month period.
Appears in 1 contract
Required Registrations. At such time as the Company shall have qualified for the use of Form S-3 (a) At or any time after similar form or forms promulgated by the earlier Commission), the Holders of (i) the fourth (4th) anniversary of the date of this Agreement or (ii) six (6) months after the closing of the Qualifying Public Offering, a Purchaser or Purchasers holding in the aggregate at least twenty percent (20%) 51% of the Registrable Shares may together request, in writing, that Securities shall have the Company effect the right to request one registration on Form S-1 S-3 or such similar form, as the case may be (or any successor form) of Registrable Shares having an aggregate anticipated offering pricecollectively, net of underwriting discounts and commissions, of at least $5,000,000 (based on the market price or fair value on the date of such request"FORM S-3"). The Company shall not be required to effect more than two (2) registrations (that have been declared and ordered effective by the Commission) pursuant to this Section 2.1(a).
(b) At any time after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), a Purchaser or Purchasers holding at least ten percent (10%) of the Registrable Shares may request, in writing, that the Company effect the registration on Form S-3 (or such successor form) of Registrable Shares having an aggregate anticipated offering price of at least $2,000,000. The Company shall not be required to effect more than two (2) registrations in any twelve (12) month period pursuant to this Section 2.1(b).
(c) Upon receipt of any request for registration pursuant to this Section 2.1, the Company shall promptly give prompt written notice of such proposed registration to all Purchasers other than the Initiating Holdersrecord Holders of Registrable Securities. Such Purchasers Holders shall have the right, by giving written notice to the Company within thirty (30) 30 days after from receipt of the Company provides its Company's notice, to elect to have included in such registration such of their Registrable Shares Securities as such Purchasers Holders may request in such notice of election, subject in the case of an underwritten offering to the terms of Section 2.1(d). Thereupon, the Company shall, as expeditiously as possiblepracticable, use its best efforts to effect the registration registration, on an appropriate registration form Form S-3, of all shares of Registrable Shares Securities which the Company has been requested to so register; provided, however, that in the case of a registration requested under Section 2.1(b), the Company will only shall not be obligated to effect such file and cause to become effective (i) more than one registration under this Section 2(a) or (ii) any Registration Statement on Form S-3 (or any successor form).
(d) If where the Initiating Holders intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 2.1(a) or (b), as the case may be, and the Company shall include such information in its written notice referred to in Section 2.1(c). In such event, the right of any other Purchaser to include its Registrable Shares in such registration pursuant to Section 2.1(a) or (b), as the case may be, shall be conditioned upon such other Purchaser’s participation in such underwriting on the terms set forth herein. All Purchasers including Registrable Shares in such registration shall enter into an underwriting agreement upon customary terms with the underwriter or underwriters selected for such underwriting by the Company and approved by a majority proposed aggregate offering price of the Initiating Holders, which such approval will not be unreasonably withheld, conditioned, or delayed; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of the Purchasers materially greater than the obligations of the Purchasers pursuant to Section 2.5. If any Purchaser who has requested inclusion of its Registrable Shares in such registration as provided above disapproves of the terms of the underwriting, such Purchaser may elect, by written notice to the Company, to withdraw its Registrable Shares from such Registration Statement and underwriting. If the managing underwriter advises the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Shares to be included in the Registration Statement and underwriting shall be allocated among all Purchasers requesting registration in proportion, as nearly as practicable, to the respective number of Registrable Shares held by them on the date of the request for registration made by the Initiating Holders pursuant to Section 2.1(a) or (b), as the case may be; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. If any Purchaser would thus be entitled to include more Registrable Shares sold thereunder is less than such Purchaser requested to be registered, the excess shall be allocated among other requesting Purchasers pro rata in the manner described in the preceding sentence$500,000.
(e) The Company shall not be required to effect any registration within six (6) months after the effective date of the Registration Statement relating to the Qualifying Public Offering. For purposes of this Section 2.1(e), a Registration Statement shall not be counted if, as a result of an exercise of the underwriter’s cut-back provisions, less than thirty-five percent (35%) of the total number of Registrable Shares that Purchasers have requested to be included in such Registration Statement are so included.
(f) A. If at the time of any request to register Registrable Shares by Initiating Holders pursuant to this Section 2.12(a), the Company is engaged or has fixed plans to engage within thirty (30) days of the time of the request in a registered public offering as to which the Holders may include Registrable Shares pursuant to Section 3 or is engaged in any other activity whichthat, in the good faith determination of the Company’s 's Board of Directors, would be adversely affected by the requested registrationregistration to the material detriment of the Company, then the Company may at its option direct that such request be delayed for a period not in excess of ninety six (906) days months from the effective date of such offering or the date of commencement of such requestother material activity, such right to delay a request to be exercised by as the Company not more than twice in any twelve (12) month periodcase may be.
Appears in 1 contract
Required Registrations. (a) At any time after the earlier of (ix) the fourth (4th) anniversary of the date of this Agreement December 22, 2006 or (iiy) six (6) months after the closing of the Qualifying Initial Public Offering, a Purchaser Stockholder or Purchasers Stockholders (excluding the Founders and Silicon Valley Bank) holding in the aggregate at least twenty percent (20%) 50% of the Registrable Shares (excluding the Founders' Shares and the SVB Shares) then outstanding may together request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) of Registrable Shares owned by such Stockholder or Stockholders having an aggregate anticipated offering price, net of underwriting discounts and commissions, value of at least $5,000,000 (based on the market price or fair value on the date of such request). The Company shall not be required to effect more than two (2) registrations (that have been declared and ordered effective by the Commission) pursuant to this Section 2.1(a).
(b) At any time after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), a Purchaser Stockholder or Purchasers holding at least ten percent Stockholders (10%excluding the Founders) of the Registrable Shares may request, in writing, that the Company effect the registration on Form S-3 (or such successor form) ), of Registrable Shares (excluding the Founders' Shares) having an aggregate anticipated offering price value of at least $2,000,000. The Company shall not be required to effect more than two 500,000 (2) registrations in any twelve (12) month period pursuant to this Section 2.1(bbased on the public market price on the date of such request).
(c) Upon receipt of any request for registration pursuant to this Section 2.12, the Company shall promptly give written notice of such proposed registration to all Purchasers other than the Initiating HoldersStockholders. Such Purchasers Stockholders shall have the right, by giving written notice to the Company within thirty (30) 30 days after the Company provides its notice, to elect to have included in such registration such of their Registrable Shares as such Purchasers Stockholders may request in such notice of election, subject in the case of an underwritten offering to the terms of Section Sections 2.1(d)) and 2(e) below. Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws, and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) on an appropriate registration form of all Registrable Shares which the Company has been requested to so register; register (provided, however, that in the case of a registration requested under Section 2.1(b), the Company will only be obligated to effect such registration on Form S-3 (or any successor form)).
(d) If the Initiating Holders intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 2.1(a) or (b), as the case may be, and the Company shall include such information in its written notice referred to in Section 2.1(c). In such event, the The right of any other Purchaser Stockholder to include its Registrable Shares in such registration pursuant to Section 2.1(a) or (b), as the case may be, shall be conditioned upon such other Purchaser’s Stockholder's participation in such underwriting on the terms set forth herein. All Purchasers including Registrable The Founders' Shares in such registration shall enter into an be excluded pro rata from the underwriting agreement to the extent deemed advisable based upon customary terms with the underwriter or underwriters selected for such underwriting marketing factors by the Company and approved by managing underwriter, and, if a majority further limitation of the Initiating Holders, which such approval will not be unreasonably withheld, conditioned, or delayed; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of the Purchasers materially greater than the obligations of the Purchasers pursuant to Section 2.5. If any Purchaser who has requested inclusion of its Registrable Shares in such registration as provided above disapproves of the terms of the underwriting, such Purchaser may elect, by written notice to the Company, to withdraw its Registrable Shares from such Registration Statement and underwriting. If the managing underwriter advises the Company in writing that marketing factors require a limitation on the number of shares to be underwrittenunderwritten is required, the number of Registrable Shares to be included in a Registration Statement filed pursuant to this Section 2.1, shall be reduced pro rata among the requesting Stockholders (excluding the Founders) based on the quotient of (1) the total Registrable Shares to be included in the Registration Statement and underwriting shall be allocated among all Purchasers requesting registration in proportionStatement, as nearly as practicable, to divided by (2) the respective total number of Registrable Shares held by them on (excluding the date of the request for registration made by the Founders' Shares) that requested registration.
(e) The Initiating Holders shall have the right to select the managing underwriter(s) for any underwritten offering requested pursuant to Section 2.1(a) or (b), as subject to the case may be; providedapproval of the Company, however, that the number of shares of Registrable Securities to be included in such underwriting and registration which approval shall not unreasonably be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. If any Purchaser would thus be entitled to include more Registrable Shares than such Purchaser requested to be registeredwithheld, the excess shall be allocated among other requesting Purchasers pro rata in the manner described in the preceding sentenceconditioned or delayed.
(ef) The Company shall not be required to effect more than two registrations pursuant to Section 2.1(a) or more than two registrations per year pursuant to Section 2.1(b). In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six (6) months after the effective date of the Registration Statement relating to the Qualifying Initial Public Offering. For purposes of this Section 2.1(e2.1(f), a Registration Statement shall not be counted if, until such time as such Registration Statement has been declared effective by the Commission (unless the Initiating Holders withdraw their request for such registration (other than as a result of an exercise information concerning the business or financial condition of the underwriter’s cut-back provisions, less than thirty-five percent (35%Company which is made known to the Stockholders after the date on which such registration was requested) of and elect not to pay the total number of Registrable Shares that Purchasers have requested Registration Expenses therefor pursuant to be included in such Registration Statement are so includedSection 2.4).
(fg) If at the time of any request to register Registrable Shares by Initiating Holders pursuant to this Section 2.1, the Company is engaged shall furnish to the Initiating Holders a writing signed by the Chairman of the Board or has plans to engage in a registered public offering or is engaged in any other activity which, Chief Executive Officer stating that in the good faith determination of the Company’s 's Board of Directors, it would be adversely affected by seriously detrimental to the requested registrationCompany and its stockholders for a Registration Statement to be filed at such time, then the Company may at its option direct that such request be delayed for a period not in excess of ninety (90) 90 days from the date of such request, such right to delay a request to be exercised by the Company not more than twice once in any twelve (12) -month period.
Appears in 1 contract
Required Registrations. (a) At any time after the earlier of (i) the fourth (4th) anniversary of the date of this Agreement November 17, 2014 or (ii) six (6) months after the closing of the Qualifying Initial Public Offering, a Purchaser an Investor or Purchasers Investors holding in the aggregate at least twenty percent (20%) a majority of the Registrable Shares then outstanding may together request, in writing, that the Company effect the registration on Form S-1 (or any successor form) of Registrable Shares owned by such Investor or Investors having an aggregate anticipated offering price, net of underwriting discounts and commissions, value of at least $5,000,000 20,000,000 (based on the market price or fair value on the date of such request). The Company shall not be required to effect more than two (2) registrations (that have been declared and ordered effective by the Commission) pursuant to this Section 2.1(a).
(b) At any time after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), an Investor or Investors holding in the aggregate a Purchaser or Purchasers holding at least ten percent (10%) majority of the Registrable Shares then outstanding may request, in writing, that the Company effect the registration on Form S-3 (or such successor form) ), of Registrable Shares owned by such Investor or Investors having an aggregate anticipated offering price value of at least $2,000,000. The Company shall not be required to effect more than two 10,000,000 (2) registrations in any twelve (12) month period pursuant to this Section 2.1(bbased on the public market price on the date of such request).
(c) Upon receipt of any request for registration pursuant to this Section 2.12, the Company shall promptly give written notice of such proposed registration to all Purchasers other than the Initiating HoldersInvestors. Such Purchasers Investors shall have the right, by giving written notice to the Company within thirty (30) 30 days after the Company provides its notice, to elect to have included in such registration such of their Registrable Shares as such Purchasers Investors may request in such notice of election, subject in the case of an underwritten offering to the terms of Section 2.1(d). Thereupon, the Company shall, as expeditiously as possiblepossible (but in no event later than (i) 90 days in the case of a request under Section 2.1(a) and (ii) 60 days in the case of a request under Section 2.1(b)), use its best efforts to effect the registration on an appropriate registration form of all Registrable Shares which the Company has been requested to so register; provided, however, that in the case of a registration requested under Section 2.1(b), the Company will only be obligated to effect such registration on Form S-3 (or any successor form).
(d) If the Initiating Holders intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 2.1(a) or (b), as the case may be, and the Company shall include such information in its written notice referred to in Section 2.1(c). In such event, (i) the right of any other Purchaser Investor to include its Registrable Shares in such registration pursuant to Section 2.1(a) or (b), as the case may be, shall be conditioned upon such other PurchaserInvestor’s participation in such underwriting on the terms set forth herein. All Purchasers , and (ii) all Investors including Registrable Shares in such registration shall enter into an underwriting agreement upon customary terms with the underwriter or underwriters selected for such underwriting by managing the Company and approved by a majority of the Initiating Holders, which such approval will not be unreasonably withheld, conditioned, or delayedoffering; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of the Purchasers Investors materially greater than the obligations of the Purchasers Investors pursuant to Section 2.5. The Initiating Holders shall have the right to select the managing underwriter(s) for any underwritten offering requested pursuant to Section 2.1(a) or (b), subject to the approval of the Company, which approval will not be unreasonably withheld, conditioned or delayed. If any Purchaser Investor who has requested inclusion of its Registrable Shares in such registration as provided above disapproves of the terms of the underwriting, such Purchaser Investor may elect, by written notice to the Company, to withdraw its Registrable Shares from such Registration Statement and underwriting. If the managing underwriter advises the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Shares to be included in the Registration Statement and underwriting shall be allocated among all Purchasers Investors requesting registration in proportion, as nearly as practicable, to the respective number of Registrable Shares held by them on the date of the request for registration made by the Initiating Holders pursuant to Section 2.1(a) or (b), as the case may be; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. If any Purchaser Investor would thus be entitled to include more Registrable Shares than such Purchaser Investor requested to be registered, the excess shall be allocated among other requesting Purchasers Investors pro rata in the manner described in the preceding sentence.
(e) The Company shall not be required to effect more than two registrations pursuant to Section 2.1(a) or more than two registrations in any 12-month period pursuant to Section 2.1(b). In addition, the Company shall not be required to effect any registration within six (6) months after the effective date of the Registration Statement relating to the Qualifying Initial Public Offering. For purposes of this Section 2.1(e), a Registration Statement shall not be counted until such time as such Registration Statement has been declared effective by the Commission (unless the Initiating Holders withdraw their request for such registration (other than as a result of information concerning the business or financial condition of the Company which is made known to the Investors after the date on which such registration was requested) and elect not to pay the Registration Expenses therefor pursuant to Section 2.4). For purposes of this Section 2.1(e), a Registration Statement shall not be counted if, as a result of an exercise of the underwriter’s cut-back provisions, less than thirty-five percent (35%) 30% of the total number of Registrable Shares that Purchasers Investors have requested to be included in such Registration Statement are so included.
(f) If at the time of any request to register Registrable Shares by Initiating Holders pursuant to this Section 2.1, the Company is engaged or has plans to engage in a registered public offering or is engaged in any other activity which, in the good faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option direct that such request be delayed for a period not in excess of ninety (90) 60 days from the date of such request, such right to delay a request to be exercised by the Company not more than twice once in any twelve (12) -month period.
Appears in 1 contract
Required Registrations. Beginning as of the date hereof and provided that any requested registration which is for an initial public offering shall be a Qualified Initial Public Offering:
(a) At any time after the earlier of (i) the fourth (4th) anniversary of the date of this Agreement Each Stockholder or (ii) six (6) months after the closing of the Qualifying Public Offering, a Purchaser or Purchasers Stockholders holding in the aggregate at least twenty percent (20%) 10% of the Registrable Shares may together request, in writing, that the Company effect the registration on Form S-1 (or any successor form) of Registrable Shares having an aggregate anticipated offering price, net of underwriting discounts then issued and commissions, of at least $5,000,000 (based on the market price or fair value on the date of such request). The Company shall not be required to effect more than two (2) registrations (that have been declared outstanding and ordered effective held by the Commission) pursuant to this Section 2.1(a).
(b) At any time after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings)Stockholders, a Purchaser or Purchasers holding at least ten percent (10%) of the Registrable Shares may request, in writing, that the Company effect the a registration on Form S-1, Form S-2 or Form S-3 (or such any successor form) of Registrable Shares owned by such requesting Stockholder or Stockholders having an aggregate anticipated offering price value of at least $2,000,000. The 5,000,000 (based on the then current market price or fair value), and, in addition to the foregoing, Nortel Networks may request, in writing, that the Company effect a registration on Form S-1, Form S-2 or Form S-3 (or any successor form) of Registrable Shares then issued and outstanding and held by Nortel Networks; provided, however, that the Company shall not be required to effect more than two (2) registrations in any twelve (12) month period pursuant to this Section 2.1(b).registration within six months after the effective date of any other Registration Statement of the Company; and
(cb) Upon receipt of any request for registration pursuant to this Section 2.1, 2:
(i) the Company shall will promptly give written notice of such proposed registration to all Purchasers other than the Initiating Holders. Such Purchasers Stockholders and Nortel Networks;
(ii) such Stockholders and Nortel Networks shall have the right, by giving written notice to the Company within thirty twenty (3020) calendar days after the Company provides its notice, to elect to have included in such registration such of their Registrable Shares as such Purchasers Stockholders and Nortel Networks may request in such notice of election, subject in the case of an underwritten offering to the terms approval of the managing underwriter as provided in Section 2.1(d). Thereupon) below; and
(iii) thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration on an appropriate registration form of all Registrable Shares which the Company has been requested to so register; provided, however, that in subject to the case of a registration requested under Section 2.1(b), the Company will only be obligated to effect such registration on Form S-3 (or any successor form)limitations set forth herein.
(dc) If the Initiating Holders or Nortel Networks intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 2.1(a) or (b), as the case may be, and the Company shall include such information in its written notice referred to in Section 2.1(c)Company. In such event, the The right of any other Purchaser person to include its Registrable Shares securities in such registration pursuant to this Section 2.1(a2.1(c) or (b), as the case may be, shall be conditioned upon such other Purchaser’s person's participation in such underwriting, as follows:
(i) Subject to Section 2.9 herein, if the Company desires that any officers or directors of the Company holding securities of the Company be included in any registration for an underwritten offering requested pursuant to Section 2.1(c) or if other holders of securities of the Company who are entitled, by contract with the Company entered into after the date of this Agreement, to have securities included in such a registration (the "OTHER HOLDERS") request such inclusion, the Company may include the securities of such officers, directors and Other Holders in such registration and underwriting on the terms set forth herein. All Purchasers including Registrable Shares in .
(ii) The Company shall (together with all Stockholders, Nortel Networks, officers, directors and Other Holders proposing to distribute their securities through such registration shall underwriting) enter into an underwriting agreement upon in customary terms with the underwriter or underwriters selected for such underwriting by the Company form (including without limitation customary indemnification and approved by a majority of the Initiating Holders, which such approval will not be unreasonably withheld, conditioned, or delayed; provided that such underwriting agreement shall not provide for indemnification or contribution obligations provisions on the part of the Purchasers materially greater than Company) with the obligations managing underwriter.
(iii) Notwithstanding any other provision of this Section 2.1(c), (x) in the case of a registration initiated by the Initiating Holders, if the managing underwriter informs the Company that the inclusion of all shares requested to be registered would adversely affect the offering, (A) the securities of the Purchasers Company held by officers or directors of the Company (other than Registrable Shares) and the securities held by Other Holders (other than Registrable Shares) shall be excluded from such registration and underwriting to the extent deemed advisable by the managing underwriter, and (B) if a further limitation of the number of shares is required, the number of shares that may be included in such registration and underwriting shall be allocated among all Stockholders requesting registration in any registration initiated by Initiating Holders and Nortel Networks to the extent that Nortel Networks desires to participate in such registration, as nearly as practicable, to the respective number of Registrable Shares requested to be registered by them in the aggregate at the time the respective requests for registration were made pursuant to Section 2.52.1(a); provided, however, that in no event shall the number of Registrable Shares requested to be registered (i) by the Stockholders in any registration initiated by Initiating Holders be reduced to less than thirty percent (30%) of any underwriting subsequent to the Qualified Initial Public Offering of the Company and (y) in the case of a registration initiated by Nortel Networks, if the managing underwriter informs the Company that the inclusion of all shares requested to be registered would adversely affect the offering, (A) the securities of the Company held by officers or directors of the Company (other than Registrable Shares) and the securities held by Other Holders (other than Registrable Shares) shall be excluded from such registration and underwriting to the extent deemed advisable by the managing underwriter, and (B) if a further limitation of the number of shares is required, the number of shares of the Stockholders that may be included in such registration and underwriting shall be proportionately excluded from such registration and underwriting to the extent deemed advisable by the managing underwriter. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriter(s) may round the number of shares allocated to any person to the nearest 100 shares.
(iv) If any Purchaser holder of Registrable Shares, officer, director or Other Holder who has requested inclusion of its Registrable Shares in such registration as provided above disapproves of the terms of the underwriting, such Purchaser person may elect, elect to withdraw therefrom by written notice to the Company, to withdraw its Registrable Shares and the securities so withdrawn shall also be withdrawn from such Registration Statement and underwritingregistration. If the managing underwriter advises the Company in writing that marketing factors require a limitation on has not limited the number of shares Registrable Shares or other securities to be underwritten, the Company may include securities for its own account in such registration if the managing underwriter so agrees and if the number of Registrable Shares to be and other securities which would otherwise have been included in the Registration Statement such registration and underwriting shall will not thereby be allocated among all Purchasers requesting registration in proportion, as nearly as practicable, to the respective number of Registrable Shares held by them on the date of the request for registration made by the limited.
(d) The Initiating Holders shall have the right to select the managing underwriter(s) for any underwritten offering initiated by Initiating Holders and Nortel Networks shall have the right to select the managing underwriter(s) for any underwritten offering initiated by Nortel Networks pursuant to Section 2.1(a) or (b), as subject to the case may be; providedapproval of the Company, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall which approval will not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. If any Purchaser would thus be entitled to include more Registrable Shares than such Purchaser requested to be registered, the excess shall be allocated among other requesting Purchasers pro rata in the manner described in the preceding sentenceunreasonably withheld.
(e) The Company shall not be required to effect effect, or take any action to effect, any registration within six pursuant to this Section 2.1:
(6i) months with respect to Stockholders, after the Company has initiated four (4) registrations requested by Stockholders pursuant to this Section 2.1;
(ii) with respect to Nortel Networks, after the Company has initiated one (1) registration requested by Nortel Networks pursuant to this Section 2.1;
(iii) subject to the Company's obligations under Section 2.2, during the period starting with the effective date of the registration statement and ending on a date one hundred eighty (180) calendar days after the effective date of a Company-initiated registration. For purpose of clauses (i) and (ii) of this Section 2.1(e), a registration shall not be counted until such time as the related Registration Statement has been declared or ordered effective by the Commission and (i) the Registration Statement relating remains continuously effective for six months or (ii) all Registrable Shares registered in such registration are sold, if earlier; provided, however, that a registration shall not be counted if (x) after the related Registration Statement has become effective, such registration or the related offer, sale or distribution of Registrable Shares thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Qualifying Public OfferingSelling Stockholders and such interference is not thereafter eliminated, (y) the conditions specified on the underwriting agreement, if any, entered into in connection with such Registration Statement are not satisfied or waived, other than by reason of the Selling Stockholders or (z) the related Registration Statement is withdrawn by the Selling Stockholders and the Selling Stockholders have elected to bear all the Registration Expenses pursuant to Section 2.4 hereof. The time period referred to in Section 2.3(a)(ii) during which the Registration Statement must be kept effective shall be extended for an additional number of business days equal to the number of business days during which the right to sell the Registrable Shares was interfered with as set forth in the preceding sentence. For purposes of this Section 2.1(e), a registration shall be counted if the related Registration Statement is withdrawn by the Stockholders or Nortel Networks, as applicable, and the Stockholders or Nortel Networks, as applicable, have not elected to bear the Registration Expenses pursuant to Section 2.4 hereof and would, absent such election, have been required to bear such expenses. For purposes of clarification, a registration shall not be counted if, as for purposes of this Section 2.1(e) if the related Registration Statement is withdrawn by the Stockholders or Nortel Networks because the Company has taken actions or suffered any consequences that would have a result material adverse effect on the Company or delay the effectiveness of an exercise of the underwriter’s cut-back provisions, less than thirty-five percent (35%) of the total number of Registrable Shares that Purchasers have requested to be included in such Registration Statement are so included(whether because (i) the Company has elected to delay such Registration Statement pursuant to the Company's rights hereunder; (ii) there have been negative developments with respect to the Company that would require disclosure in order for such Registration Statement to not be misleading, or (iii) otherwise).
(f) If at the time of any request to register Registrable Shares by Initiating Holders or Nortel Networks pursuant to this Section 2.1, the Company is engaged or has plans to engage in a registered public offering or is engaged in any other activity which, in the good faith determination of the Company’s 's Board of Directors, would be adversely affected by the requested registration, then the Company may at its option direct that such request be delayed for a period not in excess of ninety (90) calendar days from the date of such request, such right to delay a request to be exercised by the Company not more than twice in any twelve (12) -month period. If after a Registration Statement becomes effective, the Company advises the Selling Stockholders that the Company considers it appropriate that the Registration Statement be amended, the holders of such shares shall suspend any further sales of their Registrable Shares until the Company advises them that the Registration Statement has been amended. The time period referred to in Section 2.3(a)(ii) during which the Registration Statement must be kept effective shall be extended for an additional number of business days equal to the number of business days during which the right to sell shares was suspended as set forth in the preceding sentence.
Appears in 1 contract
Required Registrations. (a) At any time after the earlier of (i) the fourth (4th) anniversary of three years after the date of this Agreement or (ii) six (6) months after the closing of the Qualifying Initial Public Offering, a Purchaser or Purchasers holding in the aggregate at least twenty percent (20%) 50.1% of the Registrable Shares then outstanding may together request, in writing, that the Company effect the registration on Form S-1 (or any successor form) of Registrable Shares owned by such Purchaser or Purchasers having an aggregate anticipated offering price, net of underwriting discounts and commissions, value of at least $5,000,000 (based on the market price or fair value on the date of such request). The Company shall not be required to effect more than two (2) registrations (that have been declared and ordered effective by the Commission) pursuant to this Section 2.1(a).
(b) At any time after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), a Purchaser or Purchasers holding in the aggregate at least ten percent (10%) 50.1% of the Registrable Shares may request, in writing, that the Company effect the registration on Form S-3 (or such successor form) ), of Registrable Shares having an aggregate anticipated offering price value of at least $2,000,000. The Company shall not be required to effect more than two 3,000,000 (2) registrations in any twelve (12) month period pursuant to this Section 2.1(bbased on the public market price on the date of such request).
(c) Upon receipt of any request for registration pursuant to this Section 2.12, the Company shall promptly give written notice of such proposed registration to all Purchasers other than the Initiating HoldersPurchasers. Such Purchasers shall have the right, by giving written notice to the Company within thirty (30) 30 days after the Company provides its notice, to elect to have included in such registration such of their Registrable Shares as such Purchasers may request in such notice of election, subject in the case of an underwritten offering to the terms of Section 2.1(d). Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration on an appropriate registration form of all Registrable Shares which the Company has been requested to so register; provided, however, that in the case of a registration requested under Section 2.1(b), the Company will only be obligated to effect such registration on Form S-3 (or any successor form).
(d) If the Initiating Holders intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 2.1(a) or (b), as the case may be, and the Company shall include such information in its written notice referred to in Section 2.1(c). In such event, (i) the right of any other Purchaser to include its Registrable Shares in such registration pursuant to Section 2.1(a) or (b), as the case may be, shall be conditioned upon such other Purchaser’s participation in such underwriting on the terms set forth herein. All , and (ii) all Purchasers including Registrable Shares in such registration shall enter into an underwriting agreement upon customary terms with the underwriter or underwriters selected for such underwriting by managing the Company and approved by a majority of the Initiating Holders, which such approval will not be unreasonably withheld, conditioned, or delayedoffering; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of the Purchasers materially greater than the obligations of the Purchasers pursuant to Section 2.5 as with respect to the persons indemnified pursuant to Section 2.5. The Initiating Holders shall have the right to select the managing underwriter(s) for any underwritten offering requested pursuant to Section 2.1(a) or (b), subject to the approval of the Company, which approval will not be unreasonably withheld, conditioned or delayed. If any Purchaser who has requested inclusion of its Registrable Shares in such registration as provided above disapproves of the terms of the underwriting, such Purchaser may elect, by written notice to the Company, to withdraw its Registrable Shares from such Registration Statement and underwriting. If the managing underwriter advises the Company in writing that marketing factors require a limitation on the number of shares to be underwrittenunderwritten and after reducing any other shares included in such registration to zero, including any Company shares, the number of Purchaser Registrable Shares to be included in the Registration Statement and underwriting shall be allocated among all Purchasers requesting registration in proportion, as nearly as practicable, to the respective number of Registrable Shares held by them on the date of the request for registration made by the Initiating Holders pursuant to Section 2.1(a) or (b), as the case may be; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. If any Purchaser would thus be entitled to include more Registrable Shares than such Purchaser requested to be registered, the excess shall be allocated among other requesting Purchasers pro rata in the manner described in the preceding sentence.
(e) The Company shall not be required to effect (nor pay for) more than two registrations pursuant to Section 2.1(a) or more than two registrations within any 12-month period pursuant to Section 2.1(b) (in each case, counting for these purposes only registrations which have been declared or ordered effective, remain in effect and no stop order is then in effect or pursuant to which the distribution described therein has been completed). In addition, the Company shall not be required to effect any registration within six (6) months after the effective date of the Registration Statement relating to the Qualifying Initial Public Offering. For purposes of this Section 2.1(e), a Registration Statement shall not be counted until such time as such Registration Statement has been declared effective by the Commission (unless the Initiating Holders withdraw their request for such registration and elect not to pay the Registration Expenses therefor pursuant to Section 2.4 (other than as a result of information concerning the business or financial condition of the Company which is made known to the Purchasers after the date on which such registration was requested)). For purposes of this Section 2.1(e), a Registration Statement shall not be counted if, as a result of an exercise of the underwriter’s cut-back provisions, less than thirty-five percent (35%) 50% of the total number of Registrable Shares that Purchasers have requested to be included in such Registration Statement are so included.
(f) If at the time of any request to register Registrable Shares by Initiating Holders pursuant to this Section 2.1, the Company is engaged or has plans to engage in a registered public offering or is engaged in any other activity which, in the good faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option direct that such request be delayed for a period not in excess of ninety (90) 30 days from the date of such request, such right to delay a request to be exercised by the Company not more than twice once in any twelve (12) -month period.
Appears in 1 contract
Required Registrations. (a) At any time after the earlier of (i) the fourth (4th) anniversary of the date of this Agreement or (ii) six (6) months following 180 days after the closing of the Qualifying Initial Public Offering, a Purchaser Stockholder or Purchasers holding in the aggregate at least twenty percent (20%) of the Registrable Shares Stockholders may together request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) of Registrable Shares owned by such Stockholder or Stockholders having an aggregate anticipated offering price, net of underwriting discounts and commissions, value of at least $5,000,000 10,000,000 (based on the then current public market price or fair value on the date of such request). The Company shall not be required to effect more than two (2) registrations (that have been declared and ordered effective by the Commission) pursuant to this Section 2.1(aprice).
(b) At any time after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), a Purchaser Stockholder or Purchasers holding at least ten percent (10%) of the Registrable Shares Stockholders may request, in writing, that the Company effect the registration on Form S-3 (or such successor form) ), of Registrable Shares having an aggregate anticipated offering price value of at least $2,000,000. The Company shall not be required to effect more than two 2,500,000 (2) registrations in any twelve (12) month period pursuant to this Section 2.1(bbased on the then current public market price).
(c) Upon receipt of any request for registration pursuant to this Section 2.1, the Company shall promptly give written notice of such proposed registration to all Purchasers other than the Initiating HoldersStockholders. Such Purchasers Stockholders shall have the right, by giving written notice to the Company within thirty (30) 15 days after the Company provides its notice, to elect to have included in such registration such of their Registrable Shares as such Purchasers Stockholders may request in such notice of election, subject in the case of an underwritten offering to the terms approval of the managing underwriter as provided in Section 2.1(d)) below. Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration on an appropriate registration form of all Registrable Shares which the Company has been requested to so register; register (provided, however, that in the case of a registration requested under Section 2.1(b), the Company will only be obligated to effect such registration on Form S-3 (or any successor form)).
(d) If the Initiating Holders intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 2.1(a) or (b), as the case may be, and the Company shall include such information in its written notice referred to in Section 2.1(c). In such event, the The right of any other Purchaser Stockholder to include its Registrable Shares in such registration pursuant to Section 2.1(a) or (b), as the case may be, shall be conditioned upon such other Purchaser’s Stockholder's participation in such underwriting on the terms set forth herein. All Purchasers including Registrable Shares in such registration shall enter into an underwriting agreement upon customary terms with the underwriter or underwriters selected for such underwriting by the Company and approved by a majority of the Initiating Holders, which such approval will not be unreasonably withheld, conditioned, or delayed; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of the Purchasers materially greater than the obligations of the Purchasers pursuant to Section 2.5. If any Purchaser who has requested inclusion of its Registrable Shares in such registration as provided above disapproves of the terms of the underwriting, such Purchaser may elect, by written notice to the Company, to withdraw its Registrable Shares from such Registration Statement and underwriting. If the managing underwriter advises determines that the Company in writing that marketing factors require a limitation on of the number of shares to be underwritten, the number of Registrable Shares to be included in a Registration Statement filed pursuant to this Section 2.1 shall be reduced pro rata among the requesting Stockholders based on the quotient of (1) the total Registrable Shares to be included in the Registration Statement and underwriting shall be allocated among all Purchasers requesting registration in proportionStatement, as nearly as practicable, to divided by (2) the respective total number of Registrable Shares held by them on the date of the request for registration made by the that requested registration.
(e) The Initiating Holders shall have the right to select the managing underwriter(s) for any underwritten offering requested pursuant to Section 2.1(a) or (b), as subject to the case may be; providedapproval of the Company, however, that the number of shares of Registrable Securities to which approval will not be included in such underwriting and registration unreasonably withheld.
(f) The Company shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registrationrequired to effect more than two registrations pursuant to Section 2.1(a) or more than five registrations pursuant to Section 2.1(b). If any Purchaser would thus be entitled to include more Registrable Shares than such Purchaser requested to be registeredIn addition, the excess shall be allocated among other requesting Purchasers pro rata in the manner described in the preceding sentence.
(e) The Company shall not be required to effect any registration within six (6) months 90 days after the effective date of the any other Registration Statement of the Company relating to the Qualifying Public Offeringan underwritten offering. For purposes of this Section 2.1(e2.1(f), a Registration Statement shall not be counted ifuntil such time as such Registration Statement has been declared effective by the Commission, unless the Initiating Holders withdraw their request for such registration (other than as a result of an exercise information concerning the business or financial condition of the underwriter’s cut-back provisions, less than thirty-five percent (35%Company which is made known to the Stockholders after the date on which such registration was requested) of and elect not to pay the total number of Registrable Shares that Purchasers have requested Registration Expenses therefor pursuant to be included in such Registration Statement are so includedSection 2.4.
(fg) If at the time of any request to register Registrable Shares by Initiating Holders pursuant to this Section 2.1, the Company is engaged or has plans to engage in a registered public offering or is engaged in any other activity which, in the good faith determination of the Company’s 's Board of Directors, would be adversely affected by the requested registrationregistration or financial statements required for the requested registration are not then available, then the Company may at its option direct that such request be delayed for a period not in excess of ninety (90) 90 days from the date of such request, such right to delay a request to be exercised by the Company not more than twice once in any twelve (12) -month period.
Appears in 1 contract
Required Registrations. (a) At any time after the earlier of twelve (i) the fourth (4th) anniversary of the date of this Agreement or (ii) six (612) months after following the closing of the Qualifying Initial Public Offering, a Purchaser or Purchasers holding in the aggregate at least twenty percent (20%) 40% of the Registrable Shares then outstanding may together request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) of Registrable Shares having an aggregate anticipated offering price, net of underwriting discounts and commissions, of at least $5,000,000 (based on the market price owned by such Purchaser or fair value on the date of such request). The Company shall not be required to effect more than two (2) registrations (that have been declared and ordered effective by the Commission) pursuant to this Section 2.1(a)Purchasers.
(b) At any time after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), a Purchaser or Purchasers holding at least ten percent (10%) of the Registrable Shares may request, in writing, that the Company effect the registration on Form S-3 (or such successor form) ), of Registrable Shares having an aggregate anticipated offering price value of at least $2,000,000. The Company shall not be required to effect more than two 1,000,000 (2) registrations in any twelve (12) month period pursuant to this Section 2.1(bbased on the public market price on the date of such request).
(c) Upon receipt of any request for registration pursuant to this Section 2.12, the Company shall promptly give written notice of such proposed registration to all Purchasers other than the Initiating HoldersPurchasers. Such Purchasers shall have the right, by giving written notice to the Company within thirty (30) 20 days after the Company provides its notice, to elect to have included in such registration such of their Registrable Shares as such Purchasers may request in such notice of election, subject in the case of an underwritten offering to the terms of Section 2.1(d). Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration on an appropriate registration form of all Registrable Shares which the Company has been requested to so register; provided, however, that in the case of a registration requested under Section 2.1(b), the Company will only be obligated to effect such registration on Form S-3 (or any successor form).
(d) If the Initiating Holders intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 2.1(a) or (b), as the case may be, and the Company shall include such information in its written notice referred to in Section 2.1(c). In such event, (i) the right of any other Purchaser to include its Registrable Shares in such registration pursuant to Section 2.1(a) or (b), as the case may be, shall be conditioned upon such other Purchaser’s participation in such underwriting on the terms set forth herein. All , and (ii) all Purchasers including Registrable Shares in such registration shall enter into an underwriting agreement upon customary terms with the underwriter or underwriters selected for such underwriting by managing the Company and approved by a majority of the Initiating Holders, which such approval will not be unreasonably withheld, conditioned, or delayedoffering; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of the Purchasers materially greater than the obligations of the Purchasers pursuant to Section 2.5. The Initiating Holders shall have the right to select the managing underwriter(s) for any underwritten offering requested pursuant to Section 2.1(a) or (b), subject to the approval of the Company, which approval will not be unreasonably withheld, conditioned or delayed. If any Purchaser who has requested inclusion of its Registrable Shares in such registration as provided above disapproves of the terms of the underwriting, such Purchaser person may elect, by written notice to the Company, to withdraw its Registrable Shares from such Registration Statement and underwriting. If the Company desires that any officers or directors of the Company holding securities of the Company be included in any registration for an underwritten offering requested pursuant to Section 2.1 or if Other Holders request such inclusion, the Company may include the securities of such officers, directors and Other Holders in such registration and underwriting on the terms set forth herein applicable to the Purchasers. If the managing underwriter advises the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the shares held by officers or directors of the Company and by Other Holders (other than Registrable Shares) shall be excluded from such Registration Statement and underwriting to the extent deemed advisable by the managing underwriter, and if a further reduction of the number of Registrable Shares to shares is required, the number of shares that may be included in the such Registration Statement and underwriting shall be allocated among all Purchasers requesting registration in proportion, as nearly as practicable, to the respective number of Registrable Shares held by them on the date of the request for registration made by the Initiating Holders pursuant to Section 2.1(a) or (b), as the case may be; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. If any Purchaser such stockholder would thus be entitled to include more Registrable Shares shares than such Purchaser stockholder requested to be registered, the excess shall be allocated among other requesting Purchasers participating stockholders pro rata in the manner described in the preceding sentence. If the managing underwriter has not limited the number of Registrable Shares or other securities to be underwritten, the Company may include securities for its own account in such registration if the managing underwriter so agrees and if the number of Registrable Shares and other securities which would otherwise have been included in such registration and underwriting will not thereby be limited.
(e) The Company shall not be required to effect more than two registrations pursuant to Section 2.1(a). There shall be no limit on the number of registrations that the Company shall be required to effect pursuant to Section 2.1(b); provided, however, that the Company shall not be required to effect more than one such registration in any six month period. In addition, the Company shall not be required to effect any registration within six (6) months after the effective date of the Registration Statement relating to the Qualifying Initial Public Offering. For purposes of this Section 2.1(e), a Registration Statement shall not be counted if, until such time as a result of an exercise of the underwriter’s cut-back provisions, less than thirty-five percent (35%) of the total number of Registrable Shares that Purchasers have requested to be included in such Registration Statement are so includedhas been declared effective by the Commission (unless the Initiating Holders withdraw their request for such registration and elect not to pay the Registration Expenses therefor pursuant to Section 2.4).
(f) If at the time of any request to register Registrable Shares by Initiating Holders pursuant to this Section 2.1, the Company is engaged or has plans to engage in a registered public offering or is engaged in any other activity which, in the good faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option direct that such request be delayed for a period not in excess of ninety (90) 90 days from the date of such request, such right to delay a request to be exercised by the Company not more than twice once in any twelve (12) -month period.
Appears in 1 contract
Sources: Investor Rights Agreement (Aveo Pharmaceuticals Inc)
Required Registrations. (a) At any time after the earlier of (i) the fourth (4th) fifth anniversary of the effective date of this Agreement or (ii) six (6) months after the closing of the Qualifying Initial Public Offering, a Purchaser an Investor or Purchasers Investors holding in the aggregate at least twenty percent (20%) 30% of the Registrable Shares then outstanding may together request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) of Registrable Shares owned by such Investor or Investors having an aggregate anticipated offering price, net of underwriting discounts and commissions, value of at least $5,000,000 (based on the market price or fair value on the date of such request). The Company shall not be required to effect more than two (2) registrations (that have been declared and ordered effective by the Commission) pursuant to this Section 2.1(a).
(b) At any time after during which the Company becomes is eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), a Purchaser an Investor or Purchasers Investors holding in the aggregate at least ten percent (10%) 30% of the Registrable Shares then outstanding may request, in writing, that the Company effect the registration on Form S-3 (or such successor form) ), of Registrable Shares having an aggregate anticipated offering price value of at least $2,000,000. The Company shall not be required to effect more than two 1,000,000 (2) registrations in any twelve (12) month period pursuant to this Section 2.1(bbased on the public market price on the date of such request).
(c) Upon receipt of any request for registration pursuant to this Section 2.12, the Company shall promptly give written notice of such proposed registration to all Purchasers other than the Initiating HoldersInvestors. Such Purchasers Investors shall have the right, by giving written notice to the Company within thirty (30) 30 days after the Company provides its notice, to elect to have included in such registration such of their Registrable Shares as such Purchasers Investors may request in such notice of election, subject in the case of an underwritten offering to the terms of Section 2.1(d). Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration on an appropriate registration form of all Registrable Shares which the Company has been requested to so register; provided, however, that in the case of a registration requested under Section 2.1(b), the Company will only be obligated to effect such registration on Form S-3 (or any successor form).
(d) If the Initiating Holders intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 2.1(a) or (b), as the case may be, and the Company shall include such information in its written notice referred to in Section 2.1(c). In such event, (i) the right of any other Purchaser Investor to include its Registrable Shares in such registration pursuant to Section 2.1(a) or (b), as the case may be, shall be conditioned upon such other PurchaserInvestor’s participation in such underwriting on the terms set forth herein. All Purchasers , and (ii) all Investors including Registrable Shares in such registration shall enter into an underwriting agreement upon customary terms with the underwriter or underwriters selected for such underwriting by managing the Company and approved by a majority of the Initiating Holders, which such approval will not be unreasonably withheld, conditioned, or delayedoffering; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of the Purchasers Investors distributing Registrable Shares by means of such underwriting materially greater than the obligations of the Purchasers Investors pursuant to Section 2.52.5 hereof. The Initiating Holders shall have the right to select the managing underwriter(s) for any underwritten offering requested pursuant to Section 2.1(a) or (b), subject to the approval of the Company, which approval will not be unreasonably withheld, conditioned or delayed. If any Purchaser Investor who has requested inclusion of its Registrable Shares in such registration as provided above disapproves of the terms of the underwriting, such Purchaser Investor may elect, by written notice to the Company, to withdraw its Registrable Shares from such Registration Statement and underwriting. If Other Holders request to be included in any registration for an underwritten offering requested pursuant to Section 2.1, the Company may include the securities of such Other Holders in such registration and underwriting on the terms set forth herein applicable to the Investors. If the managing underwriter advises the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the shares held by Other Holders shall be excluded from such Registration Statement and underwriting to the extent deemed advisable by the managing underwriter, and if a further reduction of the number of Registrable Shares to shares is required, the number of shares that may be included in the such Registration Statement and underwriting shall be allocated among all Purchasers Investors requesting registration in proportion, as nearly as practicable, to the respective number of Registrable Shares held by them on the date of the request for registration made by the Initiating Holders pursuant to Section 2.1(a) or (b), as the case may be; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. If any Purchaser such stockholder would thus be entitled to include more Registrable Shares shares than such Purchaser stockholder requested to be registered, the excess shall be allocated among other requesting Purchasers participating stockholders pro rata in the manner described in the preceding sentence. If the managing underwriter has not limited the number of Registrable Shares or other securities to be underwritten, the Company may include securities for its own account in such registration if the managing underwriter so agrees and if the number of Registrable Shares and other securities which would otherwise have been included in such registration and underwriting will not thereby be limited.
(e) The Company shall not be required to effect more than two registrations pursuant to Section 2.1(a) or more than two registrations per calendar year pursuant to Section 2.1(b). In addition, the Company shall not be required to effect any registration within six (6) months after the effective date of the Registration Statement relating to the Qualifying Initial Public Offering. For purposes of this Section 2.1(e), a Registration Statement shall not be counted ifuntil such time as such Registration Statement has been declared effective by the Commission (unless the Initiating Holders withdraw their request for such registration (other than as a result of a material adverse change in the business or financial condition of the Company which is made known to the Investors after the date on which such registration was requested and the request was withdrawn upon learning such information) and elect not to pay the Registration Expenses therefor pursuant to Section 2.4). For purposes of this Section 2.1(e), a Registration Statement shall not be counted if less than all of the total number of Registrable Shares that Investors have requested to be included in such Registration Statement are so included unless such reduction is as a result of an exercise of the underwriter’s cut-back provisions, less than thirty-five percent (35%) of the total number of Registrable Shares that Purchasers have requested to be included in such Registration Statement are so included.
(f) If at the time of any request to register Registrable Shares by Initiating Holders pursuant to this Section 2.1, the Company is engaged or has plans to engage in a registered public offering or is engaged in any other activity which, in the good faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option direct that such request be delayed for a period not in excess of ninety (90) 45 days from the date of such request, such right to delay a request to be exercised by the Company not more than twice once in any twelve (12) -month period.
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Sources: Investors’ Rights and Voting Agreement (TherOx, Inc.)
Required Registrations. (a) At any time after the earlier of (ix) the fourth (4th) anniversary of the date of this Agreement December 30, 2001 or (iiy) six (6) months after the closing of the Qualifying Initial Public Offering, a Purchaser Stockholder or Purchasers Stockholders holding in the aggregate at least twenty percent (20%) 35% of the Registrable Shares then outstanding may together request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) of Registrable Shares owned by such Stockholder or Stockholders having an aggregate anticipated offering price, net of underwriting discounts and commissions, value of at least $5,000,000 (based on the then current market price or fair value on the date of such request). The Company shall not be required to effect more than two (2) registrations (that have been declared and ordered effective by the Commission) pursuant to this Section 2.1(avalue).
(b) At any time after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), a Purchaser Stockholder or Purchasers Stockholders holding in the aggregate at least ten percent (10%) 20% of the Registrable Shares then outstanding may request, in writing, that the Company effect the registration on Form S-3 (or such successor form) ), of Registrable Shares having an aggregate anticipated offering price value of at least $2,000,000. The Company shall not be required to effect more than two 500,000 (2) registrations in any twelve (12) month period pursuant to this Section 2.1(bbased on the then current public market price).
(c) Upon receipt of any request for registration pursuant to this Section 2.12, the Company shall promptly give written notice of such proposed registration to all Purchasers other than the Initiating HoldersStockholders. Such Purchasers Stockholders shall have the right, by giving written notice to the Company within thirty (30) 30 days after the Company provides its notice, to elect to have included in such registration such of their Registrable Shares as such Purchasers Stockholders may request in such notice of election, subject in the case of an underwritten offering to the terms approval of the managing underwriter as provided in Section 2.1(d)) below. Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration on an appropriate registration form of all Registrable Shares which the Company has been requested to so register; register (provided, however, that in the case of a registration requested under Section 2.1(b), the Company will only be obligated to effect such registration on Form S-3 (or any successor form)).
(d) If the Initiating Holders intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 2.1(a) or (b), as the case may be, and the Company shall include such information in its written notice referred to in Section 2.1(c). In such event, the The right of any other Purchaser Stockholder to include its Registrable Shares in such registration pursuant to Section 2.1(a) or (b), as the case may be, shall be conditioned upon such other Purchaser’s Stockholder's participation in such underwriting on the terms set forth herein. All Purchasers including Registrable Shares If the Company desires that any officers or directors of the Company holding securities of the Company be included in any registration for an underwritten offering requested pursuant to Section 2.1(d) or if other holders of securities of the Company who are entitled, by contract with the Company, to have securities included in such a registration (the "Other Holders") or the Pari Passu Holders request such inclusion, the Company may include the securities of such officers, directors, Pari Passu Holders and Other Holders in such registration and underwriting on the terms set forth herein. The Company shall (together with all Stockholders, officers, directors, Pari Passu Holders and Other Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement upon in customary terms form (including, without limitation, customary indemnification and contribution provisions on the part of the Company) with the underwriter or underwriters selected for such underwriting by the Company and approved by a majority of the Initiating Holders, which such approval will not be unreasonably withheld, conditioned, or delayedmanaging underwriter; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of the Purchasers Stockholders materially greater than the obligations of the Purchasers Stockholders pursuant to Section 2.5. If Notwithstanding any Purchaser who has requested inclusion other provision of its Registrable Shares in such registration as provided above disapproves of the terms of the underwritingthis Section 2.1(d), such Purchaser may elect, by written notice to the Company, to withdraw its Registrable Shares from such Registration Statement and underwriting. If if the managing underwriter advises the Company in writing that marketing factors require the inclusion of all shares requested to be registered would adversely affect the offering, the securities of the Company held by officers or directors of the Company (other than Registrable Shares) and the securities held by Other Holders (other than Registrable Shares) shall be excluded from such registration and underwriting to the extent deemed advisable by the managing underwriter, and if a further limitation on of the number of shares to be underwrittenis required, the number of Registrable Shares to shares that may be included in the Registration Statement such registration and underwriting shall be allocated among all Purchasers holders of Registrable Shares and Pari Passu Holders requesting registration in proportion, as nearly as practicable, to the respective number of Registrable Shares held by them on the date holders of Registrable Shares and shares held by Pari Passu Holders at the time of the request for registration made by the Initiating Holders pursuant to Section 2.1(a) or (b), as the case may be; provided. If any holder of Registrable Shares, howeverofficer, that director, Pari Passu Holders or Other Holder who has requested inclusion in such registration as provided above disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, and the securities so withdrawn shall also be withdrawn from registration. If the managing underwriter has not limited the number of shares Registrable Shares or other securities to be underwritten, the Company may include securities for its own account in such registration if the managing underwriter so agrees and if the number of Registrable Securities to be Shares and other securities which would otherwise have been included in such registration and underwriting and registration shall will not thereby be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. If any Purchaser would thus be entitled to include more Registrable Shares than such Purchaser requested to be registered, the excess shall be allocated among other requesting Purchasers pro rata in the manner described in the preceding sentencelimited.
(e) The Initiating Holders shall have the right to select the managing underwriter(s) for any underwritten offering requested pursuant to Section 2.1(a) or (b), subject to the approval of the Company, which approval will not be unreasonably withheld.
(f) The Company shall not be required to effect more than two (2) registrations pursuant to Section 2.1(a) or more than three (3) registrations in any 12-month period (less any registrations effected during such 12-month period pursuant to Section 2.1(a)) pursuant to Section 2.1(b). In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six (6) months after the effective date of the any other Registration Statement relating to of the Qualifying Public OfferingCompany. For purposes of this Section 2.1(e2.1(f), a Registration Statement shall not be counted if, until such time as such Registration Statement has been declared effective by the Commission (unless the Initiating Holders withdraw their request for such registration (other than as a result of an exercise information concerning the business or financial condition of the underwriter’s cut-back provisions, less than thirty-five percent (35%Company which is made known to the Stockholders after the date on which such registration was requested) of and elect not to pay the total number of Registrable Shares that Purchasers have requested Registration Expenses therefor pursuant to be included in such Registration Statement are so includedSection 2.4).
(fg) If at the time of any request to register Registrable Shares by Initiating Holders pursuant to this Section 2.1, the Company is engaged or has plans to engage in a registered public offering or is engaged in any other activity which, in the good faith determination of the Company’s 's Board of Directors, would be adversely affected by the requested registration, then the Company may at its option direct that such request be delayed for a period not in excess of ninety (90) 90 days from the date of such request, such right to delay a request to be exercised by the Company not more than twice once in any twelve (12) -month period.
Appears in 1 contract