Underwriting Requirements. The Company shall not be required to include in any registration and underwriting to which this Section 1.3 is applicable, the Registrable Securities of any Holder that fails to execute the underwriting agreement entered into between the Company and the underwriter or underwriters selected by it. In addition, the Company shall be required to include in the offering only that number of Registrable Securities that the underwriters determine in good faith will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering ------------------------- involving an underwriting of shares of the Company's capital stock, the Company shall not be required to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by it, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holdersstockholders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder------- stockholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” ----------- stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Common Stock and Warrant Purchase Agreement (Stamps Com Inc)
Underwriting Requirements. The In connection with any offering involving an underwriting of securities being issued by the Company, the Company shall not be required under Section 3.2 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless such Holders accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by it, and then only in such quantity, if any, as in the reasonable opinion of the underwriters, marketing factors allow. In additionIf the managing underwriter for the offering shall advise the Company in writing that the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities to be sold other than by the Company that marketing factors allow, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith will not jeopardize the success of the offering managing underwriter believes marketing factors allow (the securities so included to be apportioned pro rata among reduced as follows:
(a) all securities which stockholders other than the selling Company and the Holders according seek to include in the offering shall be excluded from the offering to the total amount extent limitation on the number of securities entitled shares included in the underwriting is required, and (b) if further limitation on the number of shares to be included therein owned in the underwriting is required, then the number of shares held by Holders that may be included in the underwriting shall be reduced so that the number of shares included in the underwriting are pro rata in accordance with the number of shares of Registrable Securities held by each selling Holder or in such other proportions as shall mutually be agreed to by such selling HoldersHolder), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) 25% of the total amount of securities included in such offering, unless such offering is the Initial Offering, initial public offering of the Company's securities in which case the selling Holders may be completely excluded if the underwriters make managing underwriter makes the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) Company are first entirely excluded from the underwriting. For purposes of the preceding provision concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionincluded.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 1.3 to include any of the Holders’ securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itthe Company (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder shareholder or in such other proportions as shall mutually be agreed to by such selling Holders), shareholders) but in no event shall (i) any shares being sold by a shareholder exercising a demand registration right similar to that granted in Section 1.2 be excluded from such offering, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case case, except as provided in subsection (i) the selling Holders shareholders may be completely excluded if the underwriters make the determination described above and no other stockholdershareholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that shareholder which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holdershareholder,” and any pro pro-rata reduction with respect to such “selling Holdershareholder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced “selling shareholder,” as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Advanced Analogic Technologies Inc)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holdersstockholders), but in no event shall (ia) the amount of securities (not including Founders' Stock) of the selling Holders included in the offering be reduced unless the securities of all other selling stockholders (including Founders) are excluded entirely, and (b) the amount of securities (not including Founders' Stock) of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case case, the selling Holders stockholders may be completely excluded if the underwriters make the determination described above and no other stockholder’s 's securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder"Selling Stockholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as will not, in the opinion of the underwriters, jeopardize the success of the offering by the Company, provided that such underwriting requirement shall not provide for indemnification or contribution obligations on the part of the Holders greater than the obligations set forth in Section 1.10(b). In additionIf the total amount of securities (including Registrable Securities) requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters reasonably believe compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that which the underwriters determine in good faith believe will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holders)stockholders, but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent twenty-five (3025%) percent of the total amount of securities included in such offering, unless such offering is the Initial Offering, initial public offering of the Company's securities in which case the selling Holders stockholders may be completely excluded entirely if the underwriters make the determination described above and no other stockholder’s 's securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that is a Holder holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder (and, in the case of a partnership, any affiliated partnerships), or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder"SELLING STOCKHOLDER,” " and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering ------------------------- involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not, jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder shareholder or in such other proportions as shall mutually be agreed to by such selling Holders), shareholders) but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, initial public offering of the Company's securities in which case the selling Holders shareholders may be excluded completely excluded if the underwriters make the determination described above and no other stockholder’s shareholder's securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that shareholder which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” shareholder", and any pro pro-rata reduction with respect to such “"selling Holder” shareholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling shareholder", as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Investors' Rights Agreement (Actuate Software Corp)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required to include in any registration and underwriting to which under this Section 1.3 is applicable, to include any of the Registrable Securities Holders’ securities in such underwriting unless they accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriters selected by it and enter into an underwriting agreement in customary form acceptable to the Company (which acceptance shall not be unreasonably withheld) with an underwriter or underwriters selected by itthe Company, and then (except as provided below) only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering offering; provided, however, that (the securities so included to be apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but i) in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any such securities held by Founders will be allocated among such selling Holders on a pro rata basis based on the number of securities each such Holder has requested to be included if in such offering and in preference to any securities held by Investors are excludedother holders of Common Stock; and provided, or (iii) further, that the number of shares of Registrable Securities to be included in such underwriting offering shall not be reduced unless all other securities (other than those than, in the case of any registration initiated by the Company, shares to be issued by the Company) are first entirely excluded from the underwritingoffering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” Holder shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 2.2 to include any of the Holder's securities in any registration and such underwriting to which this Section 1.3 is applicable, unless it accepts the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not, jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities to be sold, other than by the Company, the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (of the securities so included to be apportioned apportioned, subject to the prior rights, if any, of the stockholders other than the Holder, pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingstockholders. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that which is a Holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” stockholder", and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder", as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Registration Rights Agreement (Unimed Pharmaceuticals Inc)
Underwriting Requirements. The In connection with any offering ------------------------- involving an underwriting of shares being issued by the Company, the Company shall not be required under Section 2.4 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, the Registrable Securities of any Holder that fails to execute the unless they enter into an underwriting agreement entered into between in customary form with the lead underwriter selected by the Company, and then only in such quantity as will not, in the opinion of the underwriters, jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company and that the underwriter or underwriters selected by it. In additionreasonably believe compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith believe will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder shareholder or in such other proportions as shall mutually be agreed to by such selling Holdersshareholders), ; provided that the number of shares of Registrable Securities to be included in such underwriting shall not be reduced unless all other securities held by persons other than the Holders or the Company are first entirely excluded from the underwriting; but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case the selling Holders shareholders may be completely excluded if the underwriters make the determination described above and no other stockholder’s shareholder's securities are included, included or (ii) notwithstanding (i) above, any securities held shares being sold by Founders a shareholder exercising a demand registration right similar to that granted in Section 2.2 or 2.3 be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that shareholder which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holdershareholder,” " and any pro rata reduction with respect to such “"selling Holder” shareholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling shareholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock pursuant to Section 2.1, the Company shall not be required to include in any registration and underwriting to which this Section 1.3 is applicable, of the Holder's Registrable Securities in such underwriting unless the Holder accepts the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and its underwriters, and then only in such quantity as the underwriter or underwriters selected in their sole discretion determine will not jeopardize the success of the offering by itthe Company. In additionIf the total number of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the number of securities to be sold (other than by the Company) that the underwriters in their reasonable discretion determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters and the Company in their sole discretion determine in good faith will not jeopardize the success of the offering. In no event shall any Registrable Securities be excluded from such offering (unless all other stockholders' securities have been first excluded. If the securities so underwriters determine that less than all of the Registrable Securities requested to be registered can be included to in such offering, then the Registrable Securities that are included in such offering shall be apportioned pro rata among the selling Holders according to Holder based on the total amount number of securities entitled to be included therein owned Registrable Securities held by each all selling Holder or in such other proportions as shall mutually be agreed to by all such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingHolder. For purposes of the preceding provision in this Section 2.2 concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company company, or corporation, the affiliated venture capital fundspartners, private equity funds, partnersmembers, retired partners, members retired members, stockholders, and stockholders Affiliates of such Holder, or the estates and family members Immediate Family Members of any such partners, retired partners, members, and retired members and any trusts for the benefit of any of the foregoing persons Persons, shall be deemed to be a single “"selling Holder,” " and any pro rata reduction with respect to such “"selling Holder” " shall be based upon the aggregate amount number of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be Persons included in such "selling Holder," as defined in this sentence. Obligations of the Company. Whenever required under this Section 2 to effect the registration was previously reduced as a result of marketing factors pursuant to Section 1.3any Registrable Securities, the Company shall then offer shall, as expeditiously as reasonably possible: prepare and file with the SEC a registration statement with respect to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in and use its commercially reasonable efforts to cause such registration statement based on to become and remain effective upon the pro rata percentage Company's determination in its sole discretion; prepare and file with the SEC such amendments and supplements to such registration statement, and the prospectus used in connection with such registration statement, as may be necessary to comply with the Securities Act in order to enable the disposition of Registrable Securities held all securities covered by such Holdersregistration statement; furnish to the selling Holder such numbers of copies of a prospectus, assuming conversionincluding a preliminary prospectus, as required by the Securities Act, and (ii) second, others requesting such other documents as the Holder may reasonably request in order to include shares in facilitate its disposition of their Registrable Securities; use its commercially reasonable efforts to register and qualify the securities covered by such registration statement based on under such other securities or blue-sky laws of such jurisdictions as shall be reasonably requested by the pro rata percentage selling Holder; provided that the Company shall not be required to qualify to do business or to file a general consent to service of shares held process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act; in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering; use its commercially reasonable efforts to cause all such Registrable Securities covered by such personregistration statement to be listed on a national securities exchange or trading system and each securities exchange and trading system (if any) on which similar securities issued by the Company are then listed; promptly make available for inspection by the selling Holder, assuming conversionany managing underwriter participating in any disposition pursuant to such registration statement, and any attorney or accountant or other agent retained by any such underwriter or selected by the selling Holder, all financial and other records, pertinent corporate documents, and properties of the Company, and cause the Company's officers, directors, employees, and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant, or agent in connection with any such registration statement; notify each selling Holder, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any prospectus forming a part of such registration statement has been filed; and after such registration statement becomes effective, notify each selling Holder of any request by the SEC that the Company amend or supplement such registration statement or prospectus.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 4.2 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of Registrable Securities requested by shareholders to be included in such offering exceeds the amount of securities that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering offering, only that number of Registrable Securities that which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holders), shareholders) but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount Company's securities be less than 25 percent of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities originally requested to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingincluded. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holderstockholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any ------------------------- offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required to include in any registration and underwriting to which under this Section 1.3 is applicable, to include any of the Registrable Securities Holders' securities in such underwriting unless they accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with an underwriter or underwriters selected by itthe Company, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s shareholder's securities are included, or (ii) notwithstanding (i) above, any securities held shares being sold by Founders a shareholder exercising a demand registration right similar to that granted in Section 1.2 be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder shareholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” " and any pro rata reduction with respect to such “"selling Holder” " shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Sources: Investors' Rights Agreement (Aristotle International Inc)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required to include in any registration and underwriting to which under this Section 1.3 is applicable, to include any of the Registrable Securities Selling Holders' securities in such underwriting unless they accept the terms of any Holder that fails to execute the underwriting agreement entered into as negotiated in good faith and agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in reasonable and customary form with an underwriter or underwriters selected by itthe Company, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Selling Holders according to the total amount of securities entitled requested to be included therein owned by each selling Selling Holder or in such other proportions as shall mutually be agreed to by such selling Selling Holders), but in no event shall (i) the amount of securities of the selling Selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case the selling Selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s shareholder's securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder shareholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members, retired members and stockholders shareholders of such Holder, or the estates and family members of any such partners, retired partners, members, retired members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder"SELLING HOLDER,” " and any pro rata reduction with respect to such “selling Holder” "SELLING HOLDER" shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Sources: Investors' Rights Agreement (Eyetech Pharmaceuticals Inc)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 1.3 to include any of the Holders’ securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriters selected by it, and then only in such quantity as the underwriters determine that, due to marketing factors, will not jeopardize the success of the offering by the Company or any holders of superior registration rights. Each Holder proposing to distribute its securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for the offering. If the total amount of securities, including Registrable Securities, requested by it. In additionstockholders to be included in such offering exceeds the amount of securities sold other than by the Company (and by Institutional Investors having superior registration rights, if applicable) that the underwriters determine that, due to marketing factors, is incompatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their reasonable discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) any Registrable Securities be excluded from such offering unless all securities of selling stockholders (other than holders of superior registration rights) other than Holders of Registrable Securities shall have been excluded on a pro rata basis according to the amount of securities requested by each such Holder to be included in the offering or (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering. If any Registrable Securities are to be excluded from the offering, unless such offering is the Initial Offering, in which case amount to be excluded shall be apportioned among the selling Holders may be completely excluded if pro rata according to the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares amount of Registrable Securities requested by each such Holder to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingoffering. For purposes of the preceding provision sentences concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that or other holder of securities which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholders, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons Persons shall each be deemed to be a single “selling Holder,” and any pro pro-rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.selling
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of the Company’s capital shares, the Company shall not be required under Section 2.2 to include any of the Holders’, JD Holders’ or Existing Holders’ securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters of internationally recognized standing selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, JD Holders’ Registrable Securities and Existing Holders’ Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, JD Holders’ Registrable Securities that and Existing Holders’ Registrable Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder shareholder or in such other proportions as shall mutually be agreed to by such selling Holders), shareholders) but in no event shall (i) the amount of securities of the selling Existing Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders any other shareholder, including the Holder, be included if any securities held by Investors any selling Existing Holder are excluded, excluded or (iii) any securities held by any shareholder other than the number selling Existing Holders, Holders and JD Holders be included if any securities held by any selling Existing Holders, Holders or JD Holders are excluded. For the avoidance of shares doubt, the rights of Registrable Securities Holders and JD Holders to be included in such underwriting an offering shall be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingpari passu with each other. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that shareholder which is a an Existing Holder, Holder of Registrable Securities or ▇▇ ▇▇▇▇▇▇ and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the partners, retired partners, the affiliated venture capital funds, private equity funds, partners, retired partners, members funds and stockholders shareholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holdershareholder,” and any pro pro-rata reduction with respect to such “selling Holdershareholder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individualsindividuals included in such “selling shareholder,” as defined in this sentence. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves the terms of any such underwriting, such person shall also be excluded the Holder may elect to withdraw therefrom by written notice from to the Company or and the underwriterunderwriters delivered at least ten (10) days prior to the effective date of the registration statement. The Any Registrable Securities, JD Holders’ Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Existing Holders’ Registrable Securities or other securities excluded or withdrawn from such underwriting the underwritten offering shall be withdrawn from such the registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Sources: Registration Rights Agreement (Hony Capital Fund V, L.P.)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required to include in any registration and underwriting to which under this Section 1.3 is applicable, to include any of the Registrable Securities Holders’ securities in such underwriting unless they accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itthe Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (offering. In the securities so included event that the underwriters determine that less than all of the Registrable Securities requested to be apportioned pro rata among the selling Holders according to the total amount of securities entitled to registered can be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is then the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be that are included in such underwriting offering shall be reduced unless all other securities (other than those of apportioned in accordance with the Company) are first entirely excluded from the underwritingRegistration Cutback Order. For purposes of the preceding provision sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, or private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders any Affiliates of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons selling stockholder shall be deemed deemed, together with such selling stockholder, to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the all selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as stockholder, provided that the Warrant Shares shall mutually be agreed to by such selling Holders), but in no event shall (i) excluded entirely from the amount offering before any shares of securities Common Stock issued on conversion of Preferred Stock of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors Company are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting). For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that is a Holder holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holderstockholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Registration Rights Agreement (Persistence Software Inc)
Underwriting Requirements. The If the registration of which the Company gives notice under Section 1.3 is for a registered public offering involving an underwriting, then the Company shall so advise the Holders as part of the written notice given pursuant to Section 1.3. In such event, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned allocated, first, to the Company, second, pro rata among the Holders requesting inclusion in such registration and, if the Holders were able to sell all Registrable Securities that they desired to sell, third, pro rata among the remaining selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holdersstockholders), but in no event . No such reduction shall (i) reduce the amount of securities of the selling Holders included in the offering be reduced such registration below thirty twenty percent (3020%) of the total amount of securities included in such offeringregistration, unless such offering is the Initial OfferingCompany's Qualified IPO, in which case event all of the selling Registrable Securities of the Holders may be completely excluded if in accordance with the underwriters make preceding sentence. To facilitate the determination described allocation of shares in accordance with the above and no other stockholder’s securities are includedprovisions, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the Company may round the number of shares of Registrable Securities allocated to be included in such underwriting be reduced unless all other securities (other than those any Holder or holder to the nearest 100 shares. If the Holder or holder disapproves of the Company) are first entirely terms of any such underwritten offering, such person may elect to withdraw therefrom by written notice to the Company and the underwriters. Any securities excluded or withdrawn from such underwritten offering shall be excluded and withdrawn from such registration and, in the underwritingcase of withdrawn shares, shall not be transferred in a public distribution prior to 180 days after the effective date of the registration statement relating thereto, or such shorter period of time as the underwriters may require. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in the customary form with an underwriter or underwriters, and then, except as provided below, only in such quantity as the underwriters determine in their sole 9 discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder shareholder or in such other proportions as shall mutually be agreed to by such selling Holders), shareholders) but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case case, the selling Holders shareholders may be completely excluded if the underwriters make the determination described above and no other stockholder’s shareholder's securities are included, (ii) any securities held by Founders a Founder be included if any securities held by Investors any selling Holder are excluded, or (iii) the number of notwithstanding (i) above, any shares of Registrable Securities being sold by a shareholder exercising a demand registration right similar to that granted in Section 1.2 be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that shareholder which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holdershareholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” shareholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling shareholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the terms of the underwriting as agreed upon between a majority of the Registrable Securities of any Holder that fails indicated they would like to execute be included in the underwriting agreement entered into between underwriting, the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder shareholder or in such other proportions as shall mutually be agreed to by such selling Holders), shareholders) but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, initial public offering of the Company's securities in which case the selling Holders shareholders may be completely excluded if the underwriters make the determination described above and no other stockholder’s shareholder's securities are included, included or (ii) notwithstanding (i) above, any securities held shares being sold by Founders a shareholder exercising a demand registration right granted in Section 1.2 be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that shareholder which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holdershareholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” shareholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling shareholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.2 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the all selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as stockholder, provided that the Warrant Shares shall mutually be agreed to by such selling Holders), but in no event shall (i) excluded entirely from the amount offering before any shares of securities Common Stock issued on conversion of Preferred Stock of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors Company are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting). For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that is a Holder holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder"SELLING STOCKHOLDER,” " and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Registration Rights Agreement (Persistence Software Inc)
Underwriting Requirements. The In connection with any offering involving an underwriting of securities being issued by the Company, the Company shall not be required under Section 6(c) to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless such Holders accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by it, and then only in such quantity, if any, as in the reasonable opinion of the underwriters, marketing factors allow. In additionIf the managing underwriter for the offering shall advise the Company in writing that the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities to be sold other than by the Company that marketing factors allow, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith will not jeopardize the success of the offering managing underwriter believes marketing factors allow (the securities so included to be apportioned pro rata among reduced as follows:
(a) all securities which shareholders other than the selling Company and the Holders according seek to include in the offering shall be excluded from the offering to the total amount extent limitation on the number of securities entitled shares included in the underwriting is required, and (b) if further limitation on the number of shares to be included therein owned in the underwriting is required, then the number of shares held by Holders that may be included in the underwriting shall be reduced so that the number of shares included in the underwriting are pro rata in accordance with the number of shares of Registrable Securities held by each selling Holder or in such other proportions as shall mutually be agreed to by such selling HoldersHolder), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) 25% of the total amount of securities included in such offering, unless such offering is the Initial Offering, initial public offering of the Company's securities in which case the selling Holders may be completely excluded if the underwriters make managing underwriter makes the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) Company are first entirely excluded from the underwritingincluded. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that shareholder which is a Holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, a limited liability company or a corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members, retired members and stockholders shareholders of such Holder, or the estates and family members of any such partners, retired partners, members and retired members and any trusts for the benefit of any of the foregoing persons shall collectively be deemed to be a single “selling "Selling Holder,” " and any pro rata reduction with respect to such “selling "Selling Holder” " shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "Selling Holder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Loan and Indemnification Agreement (Imageware Software Inc)
Underwriting Requirements. (a) If, pursuant to Subsection 1.2, the Seller intends to distribute the Registrable Securities covered by its request by means of an underwriting, the Seller shall so advise the Company as part of its request made pursuant to Subsection 1.2. The underwriter(s) will be selected by the Seller, subject only to the reasonable approval of the Company. The Seller shall (together with the Company as provided in Subsection 1.5(e)) enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting. Notwithstanding any other provision of this Subsection 1.4, the number of Registrable Securities held by the Seller to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting.
(b) In connection with any offering involving an underwriting of shares of the Company’s capital stock pursuant to Subsection 1.3, the Company shall not be required to include in any registration and underwriting to which this Section 1.3 is applicable, of the Seller’s Registrable Securities in such underwriting unless the Seller accepts the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and its underwriters, and then only in such quantity as the underwriter or underwriters selected in their sole discretion determine will not jeopardize the success of the offering by itthe Company. In additionIf the total number of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the number of securities to be sold (other than by the Company) that the underwriters in their reasonable discretion determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters and the Company in their sole discretion determine in good faith will not jeopardize the success of the offering (offering. Notwithstanding the securities so included to be apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders)foregoing, but in no event shall (i) the amount number of Registrable Securities included in the offering be reduced unless all other securities (other than securities to be sold by the Company) are first entirely excluded from the offering, or (ii) the number of the selling Holders Registrable Securities included in the offering be reduced below thirty percent (30%) of the total amount number of securities included in such offering.
(c) For purposes of Subsection 1.2, unless such offering is a demand registration shall not be counted as “effected” if, as a result of an exercise of the Initial Offeringunderwriter’s cutback provisions in Subsection 2.3(a), in which case fewer than fifty percent (50%) of the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the total number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of that the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who Seller has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionare actually included.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required to include in any registration and underwriting to which under this Section 1.3 is applicable, to include any of the Registrable Securities Holders' securities in such underwriting unless they accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with an underwriter or underwriters selected by itthe Company, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty percent (3020%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s shareholder's securities are included, (ii) any the amount of securities of the selling Holders included in the offering be reduced until all securities held by Founders be included if employees of the Company or, after exclusion of all of any securities held by Investors are excludedsuch employees' shares, other stockholders of the Company have first been excluded from such offering, or (iii) the number of notwithstanding (i) or (ii) above, any shares of Registrable Securities being sold by a shareholder exercising a demand registration right similar to that granted in Section 1.2 be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder shareholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” " and any pro rata reduction with respect to such “"selling Holder” " shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Lets Talk Cellular & Wireless Inc)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holders), stockholders) but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty ten percent (3010%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case case, the selling Holders stockholders may be completely excluded if the underwriters make the determination described above and no other stockholder’s 's securities are included, included or (ii) any securities held by Founders ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇ ▇▇▇▇▇▇▇ be included if any securities held by Investors any selling Holder are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holderstockholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering ------------------------- involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' ----------- securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (provided that the securities so be included to in any such registration, other than those which are being sold for the account of the Company, shall be apportioned reduced first by reducing the number of securities that are not Registrable Securities and then shall be allocated pro rata among the selling affected Holders according in proportion to the total amount number of securities entitled Registrable Securities requested to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders)holders, but provided, -------- however, that in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) may less than 25% of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities equity ------- securities to be included in such underwriting be reduced unless all other securities (underwriting, other than those of the Company) are first entirely 's IPO, be made available for Registrable Securities nor shall any shares being sold by a Holder be excluded from the underwriting. For purposes such offering in favor of the preceding provision concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members securities to be sold on behalf of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthird party.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares being issued by the Company, the Company shall not be required under Section 3.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by it, and then only in such quantity as will not, in the written opinion of the underwriters, jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters reasonably believe compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith believe will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder shareholder or in such other proportions as shall mutually be agreed to by such selling Holdersshareholders), ; but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case the selling Holders shareholders may be completely excluded if the underwriters make the determination described above and no other stockholder’s shareholder's securities are included, included or (ii) notwithstanding (i) above, any securities held shares being sold by Founders a shareholder exercising a demand registration right similar to that granted in Section 3.2 be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that shareholder which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder"SELLING SHAREHOLDER,” " and any pro rata reduction with respect to such “selling Holder” shareholder shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.based
Appears in 1 contract
Underwriting Requirements. The In connection with any offering ------------------------- involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it, and then only in such quantity as the underwriters determine in their sole discretion will not adversely affect their ability to market the offering. If the underwriters determine that marketing factors require a limitation of the number of shares to be underwritten, the underwriters may exclude from such underwriting all or some of the shares proposed for registration on behalf of Holders, and other stockholders, on the following basis:
(a) shares held by any registration and underwriting person who does not have contractual rights to which this Section 1.3 is applicablecause the Company to register such shares shall first be excluded;
(b) if further reductions are required, the Registrable Securities of any Holder that fails to execute the underwriting agreement entered into between the Company and the underwriter or underwriters selected by it. In addition, the Company shall be required electing to include shares in the offering only that number of Registrable Securities that the underwriters determine in good faith will not jeopardize the success of the offering (the securities so included next be excluded, such reductions to be apportioned pro rata allocated as nearly as practicable among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling such Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal proportion to the number of shares so withdrawn, with that such shares Holder requests to be allocated among (i) firstregistered bears to the total number of shares that all Holders request to be registered; provided, the Holders requesting however, that in a demand registration pursuant to include Registrable Securities in such registration statement based on the pro rata percentage Section 1.2 of Registrable Securities held by such Holdersthis -------- ------- Agreement, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of all shares held by Key Stockholders exercising piggyback registration rights under Section 1.3 of this Agreement shall be excluded from the offering before exclusion of any shares held by an Investor participating in such persondemand registration. Notwithstanding the foregoing, assuming conversionin no event shall any shares being sold by a stockholder exercising a demand registration right similar to that granted in Section 1.2 be excluded from such offering.
Appears in 1 contract
Underwriting Requirements. The (a) In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 2 of this Agreement to include any of the Holder's securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by it. In addition, the Company shall be required to include it and then only in the offering only that number of Registrable Securities that such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company.
(b) If the total amount of securities requested by shareholders to be included in such offering, including Registrable Securities under Section 2 of this Agreement, exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the managing underwriter shall advise the Company in writing (with a copy to the Holder) that, in its opinion, the number of securities requested to be included in such registration (including securities to be sold by the Company or by other Persons not holding Registrable Securities) will jeopardize the success of the offering. In such case, the securities so included to be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder shareholder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingshareholders. For purposes of the preceding provision sentence concerning apportionment, for any selling stockholder that shareholder which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons Persons shall be deemed to be a single “"selling Holdershareholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” shareholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling shareholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The (a) In connection with any underwritten offering pursuant to Section 5.1, the Company shall not be entitled to include in such underwriting any securities not held by Holder; except that the Company shall be entitled to include (i) some or all of the securities held by one or more of ABKB/LaSalle Securities Limited Partnership, ▇▇▇▇▇ & Steers Capital Management, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Asset Management, Fidelity Management and Research, Stanford University, State of Michigan Retirement Systems (collectively, the "Equity Investors") pursuant to that certain Term Sheet with AOPP dated December 3, 1997 attached hereto (the "Term Sheet") and (ii) some or all of the securities held by the parties listed on Exhibit B as a result of their contribution of assets to AOPP (the "Sellers"), if such Equity Investors and/or Sellers accept the terms of the underwriting agreement with the underwriters selected pursuant to Section 5.2, and then only to the extent such securities are securities of the Company or securities convertible into or exchangeable or exercisable for securities of the Company and such securities were issued pursuant to the Term Sheet. If the total amount of securities, including the Holder's Registrable Shares and such securities of the Equity Investors and/or Sellers, to be included in such offering exceeds the amount of securities that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be entitled to include in the offering only that number of securities of Holder, the Equity Investors and/or Sellers which the underwriters determine in their sole discretion will not jeopardize the success of the offering, with the securities so included to be apportioned pro rata among the Holder, the Equity Investors and the Sellers in proportion to the total amount of securities initially requested by each of them to be included in such offering.
(b) In connection with any underwritten offering pursuant to Section 5.4, the Company shall not be required to include any of the Holders' Registrable Shares in any registration and such underwriting to which this Section 1.3 is applicable, unless Holder accepts the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into between the Company and the underwriter or underwriters selected by itthe Company. In additionIf the total amount of securities, including the Holder's Registrable Shares, to be included in such offering exceeds the amount of securities that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including the Holder's Registrable Securities that Shares, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (offering, with the securities so included to be apportioned pro rata among the Company, the Holder and all other selling Holders according stockholders in proportion to the total amount of securities entitled to be included therein owned initially requested by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities them to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionoffering.
Appears in 1 contract
Sources: Registration Rights Agreement (Ps Business Parks Inc/Ca)
Underwriting Requirements. The In connection with any offering involving ------------------------- an underwriting of shares being issued by the Company, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by it, and then only in such quantity as will not, in the opinion of the underwriters, jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold by persons or entities other than the Company that the underwriters reasonably believe compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith believe will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder shareholder or in such other proportions as shall mutually be agreed to by such selling Holdersshareholders), but in no event shall (i) in any registration other than the first registered offering of the Company's securities to the public, the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting registration shall not be reduced unless all other securities (other to less than those 20% of the Companysecurities being registered in such registration and (ii) are first entirely in no event shall any shares being sold by a shareholder exercising a demand registration right similar to that granted in Section 1.2 be excluded from the underwritingsuch offering. For purposes of the preceding provision concerning apportionment, for any in the case of a selling stockholder shareholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holdershareholder,” " and any pro rata reduction with respect to such “"selling Holder” shareholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling shareholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Shareholder Rights Agreement (Rita Medical Systems Inc)
Underwriting Requirements. The In connection with any offering involving an underwriting of securities being issued by the Company, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by it, and then only in such quantity, if any, as will not, in the opinion of the underwriters, jeopardize the success of the offering by the Company. In additionIf the managing underwriter for the offering shall advise the Company in writing that the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities to be sold other than by the Company that can be successfully offered, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith managing underwriter believes will not jeopardize the success of the offering (offering, provided, however, that the securities so included to be apportioned pro rata among the selling Holders according to the total amount number of securities entitled Registrable Securities to be included therein owned by each selling Holder or in the offering shall not be reduced unless the securities to be included in such offering for the account of any person other proportions as shall mutually be agreed to by such selling Holders)than the Company are also reduced on a pro rata basis provided, but however, that in no event shall (i) the amount of securities of (i) the selling Holders and (ii) any other parties pursuant to Section 1.7 of the Registration Rights Agreement dated July 31, 1992, between the Company and Tenacqco Bridge Partnership as in effect on the date hereof, included in the offering be reduced below thirty percent 50% (30%fifty percent) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision concerning apportionmentapportionment pursuant to this Section 1.7, for any selling stockholder that Holder which is a Holder of Registrable Securities and that is partnership or a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons persons, shall collectively with such Holder be deemed to be a single “one 'selling Holder,” ', and any pro rata reduction with respect to such “'selling Holder” ' shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced 'selling Holder', as a result of marketing factors pursuant defined in this sentence. 3. Exhibit A to Section 1.3the Agreement is hereby amended to include IMR Inc., and IMR Inc. will be considered an "Investor" for all purposes under the Agreement, entitled to all benefits and subject to all obligations thereunder as are other Investors. Except as expressly amended herein, the Company Agreement shall then offer to all persons who have retained the right to include securities remain in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, full force and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversioneffect.
Appears in 1 contract
Sources: Registration Rights Agreement (E Z Serve Corporation)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.2 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then subject to the terms set forth below only in such quantity as will not, in the opinion of the underwriters, jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters reasonably believe compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith under- writers believe will not jeopardize the success of the offering (the securities so included to be apportioned pro pro-rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holdersstockholders); provided, but in no event shall (i) however, that the amount of Registrable Securities and other securities of the selling Holders included in excluded from the offering may not be reduced below thirty to less than forty percent (3040%) of the total amount of securities included in such offering; and further provided, unless such offering is the Initial Offeringhowever that American Cyanamid will be entitled to include in each public offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and it shall so elect, no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of fewer than 110,000 shares of Registrable Registered Securities (subject to be included in such underwriting be reduced unless all appropriate adjustment for stock splits, stock dividends, combinations, other securities (other than those of the Company) are first entirely excluded from the underwritingrecapitalizations and similar events). For purposes of the parenthetical in the preceding provision sentence concerning apportionment, for any selling stockholder that which is a Holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holderstockholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stock- holder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Registration Rights Agreement (American Home Products Corp)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 7.5(b) to include any of the Holders’ securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itthe Company (or by other Persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such offering, then the Registrable Securities that are included in such offering (the securities so included to shall be apportioned pro rata among the selling Holders according to based on the total amount number of securities entitled to be included therein owned Registrable Securities held by each all selling Holder Holders or in such other proportions as shall mutually be agreed to by all such selling Holders). Notwithstanding the foregoing, but in no event shall (iA) any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded from the offering and (B) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty percent (3020%) of the total amount of securities included in such offering, unless such offering is the Initial Public Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingoffering. For purposes of the preceding provision sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, members, retired partners, members partners and stockholders of such Holder, or the estates and family members of any such partners, members and retired partners, members partners and any trusts for the benefit of any of the foregoing persons Persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 1.3 to include any of the Holder’s securities in any registration and such underwriting to which this Section 1.3 is applicable, unless it accepts the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company; provided, that in no event shall the DOE or any permitted transferee pursuant to Section 11(c)(i) of the Warrant be required to indemnify any person or make any representations and warranties. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among in the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder same manner as provided in Section 1.2(b) or in such other proportions as shall mutually be agreed to by all such selling Holders), stockholders) but in no event shall (i) the amount of securities of the selling Holders Holder included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offeringoffering (or such lesser percentage so long as all Registrable Securities held by the Holder requested to be included in the offering are so included), unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case case, the selling Holders Holder may be completely excluded only if the underwriters make the determination described above and no other stockholder’s securities are included, excluded or (ii) any securities held by Founders a Founder be included if any securities held by Investors any selling Holder are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision concerning apportionmentthis Section 1.9, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling HolderFounder” shall be based upon abscribed the aggregate amount meaning set forth in Section 1.1(h) of Registrable Securities owned the Fifth Amended and Restated Investors’ Rights Agreement, dated as of record August 31, 2009, by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to among the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversionCompany, and certain stockholders of the Company, as may be further amended from time to time (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion“Investors’ Rights Agreement”).
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 2.1 to include in any registration and underwriting to which this Section 1.3 is applicable, of the Investors’ Registrable Securities in such underwriting unless they accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with an underwriter or underwriters selected by itthe Company. In additionIf the total amount of Registrable Securities requested by Investors to be included in such offering, together with the securities to be included in such offering by the Company or any other stockholder that is not an Investor (such stockholder, an “Other Stockholder”), exceeds the amount of securities that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such Registrable Securities and securities to be included by Other Stockholders (“Other Securities”) that the underwriters determine in good faith their sole discretion, together with the securities to be included in such offering by the Company, will not jeopardize the success of the offering. If the number of securities to be included in such offering (are reduced in accordance with the preceding sentence, the number of securities so to be included to in the offering will be apportioned pro rata among the selling Holders Investors and Other Stockholders according to the total amount of securities Common Stock (on an As-Converted Basis) entitled to be included therein owned by each selling Holder Investor or in such other proportions as shall Other Stockholder pursuant to registration rights, unless otherwise mutually be agreed to by such selling Holders), but in Investors and Other Stockholder; provided that no event such limitation shall (i) be imposed unless a comparable limitation is also being imposed on Other Stockholders and any reduction of the amount number of securities of the selling Holders to be included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case by the selling Holders may be completely excluded if the underwriters make the determination described above Investors and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities Other Stockholders is to be included in apportioned pro rata among all such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingparties. For purposes of the preceding provision sentence concerning apportionment, for any selling Investor or selling stockholder that is (a) a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, all Registrable Securities or other securities entitled to be included in the affiliated venture capital funds, private equity funds, offering pursuant to registration rights held by the partners, retired partners, members partners and stockholders of such HolderInvestor, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Registrable Securities or other securities of such selling Holder,” Investor or selling stock holder and any pro rata reduction with respect to such “selling HolderInvestor” or “selling stockholder” shall be based upon the aggregate amount of such Registrable Securities or other securities owned of record by all such related entities and individuals. If a person who has requested inclusion in , or (b) that is an individual, the estates and family members of such registration as provided above does not agree individual and any trusts for the benefit of the foregoing persons shall be deemed to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded of such selling Investor or selling stock holder and any pro rata reduction with respect to such “selling Investor” or “selling stockholder” shall also be withdrawn from based upon the aggregate amount of such registration. Any Registrable Securities or other securities excluded or withdrawn from owned by all such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration related entities and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionindividuals.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Kinetic Concepts Inc /Tx/)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Stockholder's securities in any registration and such underwriting to which this Section 1.3 is applicable, unless such Stockholders accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itthe Company (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not, jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders Stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holders), Stockholders) but in no event shall (i) the amount of securities of the selling Holders Stockholders included in the offering be reduced below thirty twenty percent (3020%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that Stockholder which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” Stockholder", and any pro pro-rata reduction with respect to such “"selling Holder” Stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling Stockholder", as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares being issued by the Company, the Company shall not be required under Section 3.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by it, and then only in such quantity as will not, in the opinion of the underwriters, jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters reasonably believe compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith believe will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder shareholder or in such other proportions as shall mutually be agreed to by such selling Holdersshareholders), ; but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty fifteen percent (3015%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case the selling Holders shareholders may be completely excluded if the underwriters make the determination described above and no other stockholder’s shareholder's securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iiiii)notwithstanding (i) the number of above, any shares of Registrable Securities being sold by a shareholder exercising a demand registration right similar to that granted in Section 3.2 be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that shareholder which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holdershareholder,” " and any pro rata reduction with respect to such “"selling Holder” shareholder" shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.of
Appears in 1 contract
Underwriting Requirements. The In connection with any ------------------------- offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required to include in any registration and underwriting to which under this Section 1.3 is applicable, to include any of the Registrable Securities Holders' securities in such underwriting unless they accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with an underwriter or underwriters selected by itthe Company, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s shareholder's securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” " and any pro rata reduction with respect to such “"selling Holder” " shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares being issued by the Company, the Company shall not be required under Section 2(b) to include a particular Holder’s securities in any registration and such underwriting to which this Section 1.3 is applicable, unless such Holder accepts the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit and as are consistent with this Agreement; provided, however, that a Holder shall not be required to make any representations or warranties other than with respect to itself and its Registrable Securities. In additionIf the total amount of securities, including Registrable Securities, requested by holders of the Company’s securities to be included in such offering exceeds the amount of securities proposed to be sold by persons or entities other than the Company that the underwriters reasonably believe compatible with the success of the offering, then, except as otherwise agreed by the Company with holders of securities (other than Registrable Securities) to be included in such registration, the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith believe will not jeopardize be compatible with the success of the offering (the securities so included to be apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders)offering, but in no event shall (i) the amount of securities of the selling Holders included in the offering Company be reduced below thirty percent (30%) of the total amount of securities included in required to exclude from such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities registration shares held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting is entitled to include shares in such registration statement based on pursuant to an agreement other than this Agreement, except to the extent such other agreement permits the Company to exclude such shares from such registration before excluding or reducing pro rata percentage the Holders’ Registrable Securities, (ii) in the IPO the total amount of shares securities, including Registrable Securities requested by the Holders to be included in the IPO, be reduced unless, subject to the immediately preceding clause (i), all other securities of the Company held by other holders of securities of the Company are first entirely excluded from the IPO; or (iii) any shares being sold by a holder exercising a demand registration right similar to that granted in Section 2(a) be excluded from such person, assuming conversionoffering.
Appears in 1 contract
Sources: Registration Rights Agreement (Inozyme Pharma, Inc.)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Article I to include the Holder’s securities in any registration and such underwriting to which this Section 1.3 is applicable, unless it accepts the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (subject to the Company’s compliance with its obligations under then-existing agreements, the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holdersstockholders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that Holder which is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, corporation or limited liability company or corporationcompany, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holderholder, or the estates and family members Immediate Family Members of any such partners, retired partners, partners and members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holderstockholder,” and any pro pro-rata reduction with respect to such “selling Holderstockholder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced “selling stockholder,” as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by Holders to be included in such offering exceeds the amount of securities that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders according in proportion (as nearly as practicable) to the total amount of securities entitled to be included therein Registrable Securities of the Company owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling HoldersHolder), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case initial public offering of the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s Company's securities are included, or (ii) notwithstanding (i) above, any securities held shares being sold by Founders a shareholder exercising a demand registration right similar to that granted in Section 1.2 be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that shareholder which is a Holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holdershareholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” shareholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling shareholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required to include in any registration and underwriting to which under this Section 1.3 is applicable, to include any of the Registrable Securities Holders’ securities in such underwriting unless they accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with an underwriter or underwriters selected by itthe Company, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities subject to contractual registration rights, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case the selling Holders may be completely maybe excluded if the underwriters make the determination described above and no other stockholdershareholder’s securities are included, or (ii) notwithstanding (i) above, any securities held shares being sold by Founders a shareholder exercising a demand registration right similar to that granted in Section 1.2 be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder shareholder that is a Holder of Registrable Securities Securities, and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 3.2 to include any of the Holders’ securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by it. In addition, the Company shall be required (or by other persons entitled to include select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then, subject to the offering remaining provisions of this Section 3.2(c), only that number of Registrable Securities that in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (by the Company. If the managing underwriters advise the Company in writing that in their opinion the number of securities so included requested to be apportioned included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company will include in such registration only the amount of securities which the managing underwriters have advised can be sold, and will allocate such amount, first, to the amount of securities the Company proposes to sell and second, pro rata among the selling Holders according to and Other Holders based on the total amount number of securities entitled to be included therein owned shares held by each selling Holder all such Holders and Other Holders or in such other proportions as shall mutually be agreed to by all such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingholders. For purposes of the preceding provision sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering ------------------------- contemplated by this Agreement which constitutes an underwriting, the Company shall not be required to include any of the Holders' Registrable Securities or any securities of any Other Stockholders in any registration and such underwriting to which this Section 1.3 is unless such Holders or Other Stockholders, as applicable, accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itthe person(s) entitled to select the underwriters, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company, such determination to be confirmed in writing upon the request of any Holder. In additionIf the total amount of Registrable Securities or other securities requested by Holders and Other Stockholders, as applicable, to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only (i) that number of Registrable Securities that (up to 100% of the Registrable Securities requested to be included in such registration) which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the all selling Holders according to the total amount of securities entitled to be included therein owned Registrable Securities requested for registration by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders)) and (ii) if all Registrable Securities requested for registration by the selling Holders are included in such offering, but in no event shall (i) the amount that number of securities of the selling Holders included Company which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be reduced below thirty percent (30%) of apportioned pro rata among all Other Stockholders according to the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the CompanyRegistrable Securities) are first entirely excluded from the underwritingrequested for registration by such Other Stockholders). For purposes of the preceding provision concerning apportionment, for If any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person Other Stockholder who has requested inclusion in such registration as provided above does not agree to disapproves of the terms of any such the underwriting, such person shall also be excluded Person may elect to withdraw therefrom by written notice from to the Company or Company, and the underwriter. The Registrable Securities or other securities so excluded withdrawn shall also be withdrawn from such the registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required to include in any registration and underwriting to which under this Section 1.3 is applicableto include any of the Holders' securities in such underwriting unless they accept the terms of the underwriting, the Registrable Securities of any Holder that fails to execute the underwriting agreement entered into in customary form, as agreed upon between the Company and the underwriter or underwriters selected by itit and approved by a majority in interest of holders of Registrable Securities, and enter into such underwriting agreement, and then only in such quantity as the underwriters determine in their sole discretion will not materially and adversely jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by Holders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion could materially and adversely jeopardize the success of the offering, then the Company shall be required to include in the offering only that number of such securities (if any), including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not materially and adversely jeopardize the success of the offering (the securities so offering, and there shall be included to be apportioned pro rata among the selling Holders according in such registration and underwriting to the total amount of securities entitled extent necessary to be included therein owned by each selling Holder or in satisfy such other proportions as shall mutually be agreed to by such selling Holders)limitation, but in no event shall (i) the amount of securities of Registrable Securities held by the selling Holders Lead Investor and requested to be included in the offering up to an amount which shall equal the lesser of (a) the number of Registrable Securities which the Lead Investor has requested be reduced below thirty included in such offering and (b) twenty five percent (3025%) of the total amount of securities included in such offering, unless such offering is excluding the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held being offered by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from remaining available for inclusion in the registration and if the number of shares of Registrable Securities to offering will be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal according to the number order of shares so withdrawn, with such shares to be allocated among (iprecedence set forth in Section 1.2(iii)(a) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionabove.
Appears in 1 contract
Sources: Registration and Information Rights Agreement (Galmed Pharmaceuticals Ltd.)
Underwriting Requirements. The In connection with any ------------------------- offering involving an underwriting of securities being issued by the Company, the Company shall not be required under Section 2.2 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless such Holders accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by it, and then only in such quantity, if any, as will not, in the opinion of the underwriters, jeopardize the success of the offering by the Company. In additionIf the managing underwriter for the offering shall advise the Company in writing that the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities to be sold other than by the Company that can be successfully offered, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith managing underwriter believes will not jeopardize the success of the offering (the offering. The securities so included in the offering will be reduced as follows:
(a) first, all securities which stockholders other than the Company and the Holders seek to include in the offering shall be excluded from the offering to the extent limitation on the number of shares included in the underwriting is required; and
(b) if further limitation on the number of shares to be apportioned included in the offering is required, then the number of shares held by Holders that may be included in the underwriting shall be reduced pro rata among the selling Holders according to in accordance with the total amount number of securities entitled to be included therein owned shares of Registrable Securities held by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders)Holder; provided, but however, that in no event shall (i) the amount of -------- ------- securities of the selling Holders included in the offering be reduced below thirty percent (30%) 35% of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded except if the underwriters make managing underwriter makes the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) Company are first entirely excluded from the underwritingincluded. For purposes of the preceding provision sentence concerning apportionment, for any selling stockholder that which is a Holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or a corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall collectively be deemed to be a single “"selling Holder,” " and any pro rata reduction with respect to such “"selling Holder” " shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling Holder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Registration Rights Agreement (Touchstone Applied Science Associates Inc /Ny/)
Underwriting Requirements. The In connection with any offering involving an underwriting of securities of the Company pursuant to Subsection 2.1, the Company shall not be required to include in any registration and underwriting to which this Section 1.3 is applicable, the of a Holder’s Registrable Securities in such underwriting unless the Holder accepts the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and its underwriters, and then only in such quantity as the underwriter or underwriters selected in good faith determine will not jeopardize the success of the offering by itthe Company. In additionIf the total number of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the number of securities to be sold (other than securities to be sold by the Company) that the underwriters in their reasonable discretion determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine and the Company in good faith determine will not jeopardize the success of the offering (offering. If the securities so included underwriters determine that less than all of the Registrable Securities requested to be apportioned pro rata registered can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated among the selling Holders according in proportion (as nearly as practicable) to the total amount number of securities entitled to be included therein Registrable Securities owned by each selling Holder or in such other proportions as shall mutually be agreed to by all such selling Holders). To facilitate the allocation of shares in accordance with the above provisions, but the Company or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) shares. Notwithstanding the foregoing, in no event shall (i) the amount number of securities of the selling Holders Registrable Securities included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of securities to be sold by the Company) are first entirely excluded from the underwritingoffering. For purposes of the preceding provision in this Subsection 2.20 concerning apportionment, for any selling stockholder Holder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital fundspartners, private equity funds, partnersmembers, retired partners, members retired members, shareholders, and stockholders Affiliates of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons Persons, shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount number of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be Persons included in such registration was previously reduced “selling Holder,” as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Registration Rights Agreement (1315 Capital II, L.P.)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock pursuant to Section 2.2, the Company shall not be required to include in any registration and underwriting to which this Section 1.3 is applicable, of the Holders’ Registrable Securities in such underwriting unless the Holders accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and its underwriters, and then only in such quantity as the underwriter or underwriters selected in their sole discretion determine will not jeopardize the success of the offering by itthe Company. In additionall instances if the total number of securities, including Registrable Securities, requested by stockholders to be included in any such offering exceeds the number of securities to be sold (other than by the Company) that the underwriters in their sole discretion determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters and the Company in their sole discretion determine in good faith will not jeopardize the success of the offering, provided, however, that the Company shall not reduce the number of Registrable Securities included in the offering below twenty percent (20%) of the securities so included amount of the Holders’ Registrable Securities proposed to be apportioned pro rata included, unless such offering is the IPO, in which case the Company may completely reduce the Registrable Securities to zero if the underwriters make the determination described below and no other stockholder’s securities are included in such offering. If the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated among the selling Holders according to in proportion (as nearly as practicable to) the total amount number of securities entitled to be included therein Registrable Securities owned by each selling Holder or in such other proportions as shall mutually be agreed to by all such selling Holders). To facilitate the allocation of shares in accordance with the above provisions, but the Company or the underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. Notwithstanding the foregoing, in no event shall (i) the amount number of Registrable Securities included in the offering be reduced unless all other securities (other than securities to be sold by the Company) are first entirely excluded from the offering, or (ii) the number of the selling Holders Registrable Securities included in the offering be reduced below thirty twenty percent (3020%) of the total amount number of securities included in such offering, unless such offering is the Initial OfferingIPO, in which case the selling Holders may be completely excluded further if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingoffering. For purposes of the preceding provision in this Section 2.3 concerning apportionment, for any selling stockholder Holder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporationCompany, the affiliated venture capital fundspartners, private equity funds, partnersInvestors, retired partners, members retired Investors, stockholders and stockholders Affiliates of such Holder, or the estates and family members Immediate Family Investors of any such partners, retired partners, members Investors and retired Investors and any trusts for the benefit of any of the foregoing persons Persons, shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount number of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be Persons included in such registration was previously reduced “selling Holder,” as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Investor Rights Agreement
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.2 or 1.3 to include any of the Holders' Shares in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their safe discretion will not, jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro pro-rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder shareholder or in such other proportions as shall mutually be agreed to by such selling Holders), shareholders) but in no event shall the amount of Shares of the selling Holders included in the offering be reduced below fifty percent (i50%) of the total amount of Registrable Securities requested by such selling Holders to be included in the offering, unless there are no selling shareholders, other than the selling Holders, in the offering, in which case the amount of securities of the selling Holders included in the offering may be reduced below thirty fifty percent (3050%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting). For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that shareholder which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holdershareholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” shareholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling shareholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 2.2 to include any of the Holders’ securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itthe Company and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. In no event shall any Registrable Securities be excluded from such offering (unless all other stockholders’ securities have been first excluded. In the securities so event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included to in such offering, then the Registrable Securities that are included in such offering shall be apportioned pro rata among the selling Holders according to based on the total amount number of securities entitled to be included therein owned Registrable Securities held by each all selling Holder Holders or in such other proportions as shall mutually be agreed to by all such selling Holders). Notwithstanding the foregoing, but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingoffering. For purposes of the preceding provision this Section 2 concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, corporation or limited liability company or corporationcompany, the affiliated venture capital funds, private equity funds, partners, retired partners, stockholders and members and stockholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to unless they accept the terms of the underwriting, which this Section 1.3 is applicableterms shall be customary for similar transactions, the Registrable Securities of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not, jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder Shareholder or in such other proportions as shall mutually be agreed to by such selling Holders), shareholders) but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) % of the total amount of securities included in such offering, provided, however, that the Registrable Securities held by 360 Capital Partners, L.P. ("360 Capital") and any transferee acquiring at least 317,216 shares of Series C Preferred Stock (or the Common Stock issuable upon the conversion thereof) from 360 Capital, and the Registrable Securities held by each of America Online, Inc. ("AOL"), Attractor Ventures L.L.C., Hummer Winblad Venture Partners II, L.P. and 21st Century Internet Fund, L.P., and their affiliates, shall not be excluded unless all other shareholders' securities have been entirely excluded from such offering; provided further, however, if such offering is the Initial Offeringinitial public offering of the Company's securities, in which case all of the selling Holders shareholders may be completely excluded if the underwriters make the determination described above and no other stockholder’s shareholder's securities are included, or (ii) notwithstanding (i) above, any securities held shares being sold by Founders a shareholder exercising a demand registration right similar to that granted in Section 1.2 be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that shareholder which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” shareholder", and any pro pro-rata reduction with respect to such “"selling Holder” shareholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling shareholder", as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as will not, in the opinion of the underwriters, jeopardize the success of the offering by the Company, PROVIDED THAT such underwriting requirement shall not provide for indemnification or contribution obligations on the part of the Holders greater than the obligations set forth in Section 1.10(b). In additionIf the total amount of securities (including Registrable Securities) requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters reasonably believe compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that which the underwriters determine in good faith believe will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holders)stockholders, but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent twenty-five (3025%) percent of the total amount of securities included in such offering, unless such offering is the Initial Offering, initial public offering of the Company's securities in which case the selling Holders stockholders may be completely excluded entirely if the underwriters make the determination described above and no other stockholder’s 's securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that is a Holder holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder (and, in the case of a partnership, any affiliated partnerships), or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder"SELLING STOCKHOLDER,” " and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of the Company’s capital shares, the Company shall not be required under Section 1.3 to include any of the Holders’ securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder shareholder or in such other proportions as shall mutually be agreed to by such selling Holders), shareholders) but in no event shall (i) any shares being sold by a shareholder exercising a demand registration right similar to that granted in Section 1.2 be excluded from such offering; (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) % of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case case, the selling Holders shareholders may be completely excluded if the underwriters make the determination described above and no other stockholdershareholder’s securities are included, ; or (iiiii) any securities held by Founders a Founder or any third party be included if any securities held by Investors any selling Holder are excluded, excluded or (iiiiv) any shareholder of the number of shares Company who is not a holder of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those without the consent of a majority of the Company) are first entirely excluded from the underwritingRegistrable Securities. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that shareholder which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holdershareholder,” and any pro pro-rata reduction with respect to such “selling Holdershareholder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced “selling shareholder,” as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Telegent Systems, Inc)
Underwriting Requirements. The In connection with any offering involving ------------------------- an underwriting of securities being issued by the Company, the Company shall not be required under Section 2.2 to include any of the Fund Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless such Fund Holders accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by it, and then only in such quantity, if any, as will not, in the opinion of the underwriters, jeopardize the success of the offering by the Company. In additionIf the managing underwriter for the offering shall advise the Company in writing that the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities to be sold other than by the Company that can be successfully offered, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith managing underwriter believes will not jeopardize the success of the offering (the offering. The securities so included to be apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering will be reduced below thirty percent as follows:
(30%a) of first, all securities which shareholders other than the total amount of securities included Company and the Fund Holders seek to include in such offering, unless such the offering is shall be excluded from the Initial Offering, in which case offering to the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) extent limitation on the number of shares included in the underwriting is required; and
(b) to the extent further limitation is required, then:
(i) all Registrable Securities which any Fund Holders (other than Initiating Fund Holders) seek to include in the underwriting shall be reduced pro rata among such Fund Holders in accordance with the number of Registrable Securities then held by each such Fund Holder; and
(ii) to be included the extent further limitation is required, all Registrable Securities which any Initiating Fund Holders seek to include in such the underwriting shall be reduced unless all other securities (other than those of pro rata among such Initiating Fund Holders in accordance with the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision concerning apportionment, for any selling stockholder that is a Holder number of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by each such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.Initiating Fund Holder;
Appears in 1 contract
Sources: Registration Rights Agreement (System Software Associates Inc)
Underwriting Requirements. The In connection with any offering ------------------------- involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holders), stockholders) but in no event shall (i) any shares being sold by a stockholder exercising a demand registration right similar to that granted in Section 1.2 be excluded from such offering except as provided in Section 1.2, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case case, except as provided in clause (i), the selling Holders stockholders may be completely excluded if the underwriters make the determination described above and no other stockholder’s 's securities are included, included or (iiiii) any securities held by Founders a Founder be included if any securities held by Investors any selling Holder are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holderstockholder,” " and any pro pro-rata reduction with ------------------- respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Investors' Rights Agreement (Loudeye Technologies Inc)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.2 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless such Holders accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itthe Company (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (in which case, the securities so included shall first be allocated amongst the existing stockholders of the Company which have exercised their registration rights pursuant to that certain Amended and Restated Stockholders' Agreement dated March 5, 1999 by and between the Company and the Stockholders (as defined therein), as amended, and shall thereafter be apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that Holder which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” ", and any pro pro-rata reduction with respect to such “"selling Holder” " shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling Holder", as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holders), stockholders) but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty thirty-five percent (3035%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case case, the selling Holders stockholders may be completely excluded if the underwriters make the determination described above and no other stockholder’s 's securities are included, included or (ii) any securities held by the Founders be included if any securities held by Investors any other selling Holder are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holderstockholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 1.3 to include any of the Holders’ securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holders), stockholders) but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, initial public offering of the Company’s securities in which case the selling number of shares held by the Holders and any other stockholders proposed to be included in the offering may be completely excluded reduced to zero if the underwriters make the determination described above and no other stockholder’s securities are included, included or (ii) notwithstanding (i) above, any securities held shares being sold by Founders a stockholder exercising a demand registration right similar to that granted in Section 1.2 be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that which is a Holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holderstockholder,” and any pro rata reduction with respect to such “selling Holderstockholder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced “selling stockholder,” as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Investors’ Rights Agreement (GCT Semiconductor Inc)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required to include in any registration and underwriting to which under this Section 1.3 is applicable, to include any of the Registrable Securities Holders’ securities in such underwriting unless they accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriter or underwriters, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but (i) in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, or (ii) notwithstanding (i) above, in no event shall the selling Holders be excluded from any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced registration unless all other securities (other than those of the Company) stockholders’ shares are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the terms of the underwriting as agreed upon between the Holders of a majority of the Registrable Securities of any Holder that fails indicated they would like to execute be included in the underwriting agreement entered into between underwriting, the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled and requested to be included therein owned by each selling Holder shareholder or in such other proportions as shall mutually be agreed to by such selling Holders), shareholders) but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, or (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among notwithstanding (i) firstabove, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.Section
Appears in 1 contract
Sources: Investor Rights Agreement (Soros Fund Management LLC)
Underwriting Requirements. The Company shall In connection with any offering involving an underwriting of shares being issued by Weat▇▇▇▇▇▇▇, ▇▇at▇▇▇▇▇▇▇ ▇▇▇ll not be required under Section 6.3 to include in any registration and underwriting to which this Section 1.3 is applicable, of the Holders' Registrable Securities in such underwriting unless they accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between Weat▇▇▇▇▇▇▇ ▇▇▇ the Company and the underwriter or underwriters selected by it. In additionIf the total amount of securities, including Registrable Securities, requested by Holders and other stockholders to be included in such offering exceeds the Company shall amount of securities sold other than by Weat▇▇▇▇▇▇▇ ▇▇▇t the underwriters reasonably believe compatible with the success of the offering, then Weat▇▇▇▇▇▇▇ ▇▇▇ll be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith believe will not jeopardize the success of the offering (offering. To achieve any necessary reduction in the securities so included to be apportioned sold, the securities to be excluded from the offering shall first be selected (in each case, pro rata among the selling Holders such class of holders according to the total amount of securities entitled proposed to be included therein owned by each selling Holder in the registration statement or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (iclass of holders) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among following order: (i) first, securities being included on behalf of holders other than members of the Holders requesting to include FRC Group shall be excluded, except as provided in (iii) below; (ii) next, if additional securities must be excluded, Registrable Securities included pursuant to Section 6.3 shall be excluded; (iii) thereafter, if additional securities must be excluded, securities included on behalf of a holder exercising demand registration rights similar to those set forth in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversionSection 6.2 shall be excluded, and (iiiv) secondfinally, others requesting to include shares in such registration statement based on the pro rata percentage of shares held if additional securities must be excluded, securities offered by such person, assuming conversionWeat▇▇▇▇▇▇▇ ▇▇▇ll be excluded.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required to include in any registration and underwriting to which under this Section 1.3 is applicable, to include any of the Registrable Securities Holders' securities in such underwriting unless they accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with an underwriter or underwriters selected by itthe Company, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holdersstockholders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s 's securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” " and any pro rata reduction with respect to such “"selling Holder” " shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering ------------------------- involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holder's securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holdersstockholders). The Holder shall not be entitled to participate in an underwritten offering unless the Holder enters into, but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offeringand performs its obligations under, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, one or (iii) the number of shares of Registrable Securities to be included in such more underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members agreements and any trusts for the benefit related agreements and documents (including an escrow agreement and/or a power of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction attorney with respect to such “selling Holder” the disposition of the Registrable Securities), in the form that the Holder shall be based upon agree to with the aggregate amount lead managing underwriter of Registrable Securities owned of record by all such related entities and individualsthe transaction. If a person who has requested inclusion in such registration as provided above does not agree to the Holder disapproves of the terms of any such underwriting, such person shall also be excluded it may elect, prior to the execution of any underwriting agreement, to withdraw therefrom by written notice from to the Company or and the lead managing underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Underwriting Requirements. The (a) In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 2.2 of this Agreement to include any of the Holder's securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by it. In addition, the Company shall be required to include it and then only in the offering only that number of Registrable Securities that such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company.
(b) If the total amount of securities requested by shareholders to be included in such offering, including Registrable Securities under Section 2.2 of this Agreement, exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the managing underwriter shall advise the Company in writing (with a copy to the Holder) that, in its opinion, the number of securities requested to be included in such registration (including securities to be sold by the Company or by other Persons not holding Registrable Securities) will jeopardize the success of the offering. In such case, the securities so included to be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder shareholder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingshareholders. For purposes of the preceding provision sentence concerning apportionment, for any selling stockholder that shareholder which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons Persons shall be deemed to be a single “"selling Holdershareholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” shareholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling shareholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Asset Purchase and Stock Sale Agreement (Geoworks /Ca/)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 2.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holders), stockholders) but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty fifteen percent (3015%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, initial public offering of the Company's securities in which case the selling Holders stockholders may be completely excluded entirely if the underwriters make the determination described above above; and no other stockholder’s securities are included, (ii) any securities held by PROVIDED FURTHER that the Founders shall be included if any securities held by Investors are excluded, or (iii) the number of excluded entirely from selling shares in a public offering before selling holders of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) Founders are first entirely excluded from the underwritingtherefrom. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that is a Holder holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder"SELLING STOCKHOLDER,” " and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless such Holders accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itthe Company (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but notwithstanding the foregoing, in no event shall (i) the amount of securities of the selling Holders included in the offering any Registrable Securities be reduced below thirty percent (30%) of the total amount of securities included in excluded from such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (being offered, other than those of being offered by the Company) , are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that Holder which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, corporation or limited liability company or corporationcompany, the affiliated venture capital funds, private equity funds, partners, retired partners, shareholders and members and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” ", and any pro pro-rata reduction with respect to such “"selling Holder” " shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling Holder", as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of the Company’s capital shares, the Company shall not be required under Section 1.3 to include any of the Holders’ securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters of internationally recognized standing selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder shareholder or in such other proportions as shall mutually be agreed to by such selling Holders), shareholders) but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case case, the selling Holders shareholders may be completely excluded if the underwriters make the determination described above and no other stockholdershareholder’s securities are included, included or (ii) any securities held by Founders any Ordinary Shareholder or any other shareholder be included if any securities held by Investors any selling Holder are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that shareholder which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the partners, retired partners, the affiliated venture capital funds, private equity funds, partners, retired partners, members funds and stockholders shareholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holdershareholder,” and any pro pro-rata reduction with respect to such “selling Holdershareholder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individualsindividuals included in such “selling shareholder,” as defined in this sentence. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves the terms of any such underwriting, such person shall also be excluded the Holder may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registrationunderwriters delivered at least ten (10) days prior to the effective date of the registration statement. Any Registrable Securities or other securities excluded or withdrawn from such underwriting the underwritten offering shall be withdrawn from such the registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holders), but stockholders; provided that there shall be no reduction in no event shall (i) the amount number of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, any Holder that is not a Founder unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any all securities held by the Founders be included if and their transferees and any securities held by Investors are excluded, or (iii) the number other holders of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities Common Stock (other than those of the CompanyHolders) are first entirely excluded withdrawn from the underwritingoffering). For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holderstockholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The (a) In connection with any offering involving an underwriting of shares of the Company’s capital stock pursuant to Section 6.1(b), Section 6.1(c) or Section 6.2, the Company shall not be required to include any of the Investors’ Conversion Shares in any registration and such underwriting to which this Section 1.3 is applicable, unless the Registrable Securities Investors accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and its underwriters, and then only in such quantity, if any, as the underwriter or underwriters selected in their sole discretion determine will not jeopardize the success of the offering by itthe Company. In additionIf the total number of securities, including Conversion Shares, requested by stockholders to be included in such offering exceeds the number of securities to be sold (other than by the Company) that the underwriters in their reasonable discretion determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of Registrable Securities that such securities, including Conversion Shares, which the underwriters and the Company in their sole discretion determine in good faith will not jeopardize the success of the offering (offering. If the securities so included underwriters determine that less than all of the Conversion Shares requested to be apportioned pro rata registered can be included in such offering, then the Conversion Shares that are included in such offering shall be allocated among the selling Holders according to Investors in proportion (as nearly as practicable to) the total amount number of securities entitled to be included therein Conversion Shares owned by each selling Holder or in such other proportions as shall mutually be agreed to by all such selling Holders)Investors. To facilitate the allocation of shares in accordance with the above provisions, but the Company may in its sole discretion round the number of shares allocated to the Holder to the nearest 100 shares. Notwithstanding the foregoing, in no event shall (i) the amount number of Conversion Shares included in the offering be reduced unless all other securities (other than securities to be sold by the Company) are first entirely excluded from the offering, or (ii) the number of the selling Holders Conversion Shares included in the offering be reduced below thirty twenty percent (3020%) of the total amount number of securities included in such offering, unless such offering is the Initial OfferingIPO, in which case the selling Holders Investors may be completely excluded further if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, in such offering or (iii) notwithstanding (ii) above, any Conversion Shares which are not Conversion Shares of the number of shares of Registrable Securities to Key Owner be included in excluded from such underwriting be reduced unless all other securities (other than those Conversion Shares of the Company) Key Owner are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision in this Section 6.3(b) concerning apportionment, for any selling stockholder Holder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company company, or corporation, the affiliated venture capital fundspartners, private equity funds, partnersmembers, retired partners, members retired members, stockholders, and stockholders Affiliates of such Holder, or the estates and family members Immediate Family Members of any such partners, retired partners, members, and retired members and any trusts for the benefit of any of the foregoing persons Persons, shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount number of Registrable Securities Conversion Shares owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be Persons included in such registration was previously reduced “selling Holder,” as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Subscription Agreement (Shuttle Pharmaceuticals Holdings, Inc.)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 1.2 to include any of the Holders’ securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among first to the selling Holders on a pro rata basis, based on the total number of Registrable Securities held by the Holders and second to any other selling stockholders pro rata according to the total amount of securities entitled to be included therein owned by each such selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling HoldersHolders and other selling stockholders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” stockholder”, and any pro pro-rata reduction with respect to such “selling Holderstockholder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced “selling stockholder,” as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Class a Common Stock Stockholders’ Rights Agreement (StubHub Holdings, Inc.)
Underwriting Requirements. The In connection with any offering ------------------------- involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holdersstockholders), but in no event shall (i) the amount of securities (not including Founders' Stock) of the selling Holders included in the offering be reduced unless the securities of all other selling shareholders (including Founders) are excluded entirely and (ii) the amount of securities (not including Founders' Stock) of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder------- stockholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” ----------- stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Series a Preferred Stock Purchase Agreement (Avantgo Inc)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock pursuant to Section 2.1, the Company shall not be required to include in any registration and underwriting to which this Section 1.3 is applicable, of the Holders’ Registrable Securities in such underwriting unless the Holders accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and its underwriters, including any lock-up agreements or market standoff agreements, and then only in such quantity as the underwriter or underwriters selected in their sole discretion determine will not jeopardize the success of the offering by itthe Company. In additionIf the total number of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the number of securities to be sold (other than by the Company) that the underwriters in their reasonable discretion determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters and the Company in their sole discretion determine in good faith will not jeopardize the success of the offering (offering. If the securities so included underwriters determine that less than all of the Registrable Securities requested to be apportioned pro rata registered can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated among the selling Holders according to in proportion (as nearly as practicable to) the total amount number of securities entitled to be included therein Registrable Securities owned by each selling Holder or in such other proportions as shall mutually be agreed to by all such selling Holders). To facilitate the allocation of shares in accordance with the above provisions, but the Company or the underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. Notwithstanding the foregoing, in no event shall (i) the amount number of securities of the selling Holders Registrable Securities included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of securities to be sold by the Company) are first entirely excluded from the underwriting. offering, or (ii) the number of Registrable Securities included in the offering be reduced below twenty percent (20%) of the total number of securities included in such offering, For purposes of the preceding provision in this Section 2.2 concerning apportionment, for any selling stockholder Holder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company company, or corporation, the affiliated venture capital fundspartners, private equity funds, partnersmembers, retired partners, members retired members, stockholders, and stockholders Affiliates of such Holder, or the estates and family members Immediate Family Members of any such partners, retired partners, members, and retired members and any trusts for the benefit of any of the foregoing persons Persons, shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount number of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be Persons included in such registration was previously reduced “selling Holder,” as a result of marketing factors pursuant to Section 1.3, the defined in this sentence. The Company shall then offer to all persons who have retained choose the right to include securities underwriter in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionits sole discretion.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of Common Stock, the Company shall not be required to include in any registration and underwriting to which under this Section 1.3 is applicable, to include any of the Registrable Securities Holders' securities in such underwriting unless they accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the underwriters, in their sole discretion, determine and advise in writing the Company and the Holders of the Registrable Securities requesting participation in such registration that in their good faith judgment the number of shares of Registrable Securities and the other securities requested to be registered under this Section 1.3 exceeds the maximum amount of Common Stock which can be marketed (giving first priority to Common Stock to be issued by the Company in such underwriting, but giving priority to the shares requested to be included in the offering pursuant to this Section 1.3 over all other shares proposed to be included therein), then the Company shall be required to include in the offering only that number of shares of Common Stock, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (and the securities so included to shall be apportioned pro rata among the selling participating Holders according to the total amount of securities entitled to be included therein owned by each selling participating Holder or in such other proportions as shall mutually be agreed to by such selling participating Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision concerning such apportionment, for any selling stockholder participating Holder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons Persons shall be deemed to be a single “selling participating Holder,” , and any pro pro-rata reduction with respect to such “selling Holder” participating Holder shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be Persons included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionparticipating Holder.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.2 or 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not, jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder shareholder or in such other proportions as shall mutually be agreed to by such selling Holders), shareholders) but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty fifty percent (3050%) of the total amount of securities Registrable Securities requested by such selling Holders to be included in such the offering, unless such offering is there are no selling shareholders, other than the Initial Offeringselling Holders, in the offering, in which case the amount of securities of the selling Holders included in the offering may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, reduced below fifty percent (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting50%). For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that shareholder which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holdershareholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” shareholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling shareholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering ------------------------- involving an underwriting of shares of the Company's capital stock, the Company shall not be required to include in any registration and underwriting to which under this Section 1.3 is applicable, to include any of the Registrable Securities Holders' securities in such underwriting unless they accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with an underwriter or underwriters selected by itthe Company, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s 's securities are included, included (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) except with the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those consent of the Company) are first entirely excluded from Holders of the underwritingthen outstanding Registrable Securities). For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” " and any pro rata reduction with respect to such “"selling Holder” " shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares being issued by the Company, the Company shall not be required under Section 1.3 to include any of the Series C Holders' or Prior Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by it, and then only in such quantity as will not, in the opinion of the underwriters, jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters reasonably believe compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith believe will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holders), stockholders) but in no event shall (ia) the amount of securities of the selling Series C Holders and Prior Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, initial public offering of the Company's securities in which case the selling Holders stockholders may be completely excluded if the underwriters make the determination described above and no other stockholder’s 's securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iiib) the number of notwithstanding (a) above, any shares of Registrable Securities being sold by a stockholder exercising a demand registration right similar to that granted in Section 1.2 be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that is a Series C Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holderstockholder,” " and any pro rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 1.3 to include any of the Holders’ securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder shareholder or in such other proportions as shall mutually be agreed to by such selling Holdersshareholders), but in no event shall (i) any shares being sold by a shareholder exercising a demand registration right similar to that granted in Section 1.2 be excluded from such offering, (ii) the amount of securities of the selling Holders of Preferred Stock included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case (except as provided in (i) above) the selling Holders shareholders may be completely excluded entirely if the underwriters make the determination described above and no other stockholdershareholder’s securities are included, included or (iiiii) any securities held by Founders a Founder be included if any securities held by Investors any selling Holder are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that shareholder which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holdershareholder,” and any pro pro-rata reduction with respect to such “selling Holdershareholder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced “selling shareholder,” as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock pursuant to Section 2.2, the Company shall not be required to include in any registration and underwriting to which this Section 1.3 is applicable, of the Holders’ Registrable Securities in such underwriting unless the Holders accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and its underwriters, and then only in such quantity as the underwriter or underwriters selected determine in their sole discretion will not jeopardize the success of the offering by itthe Company. In additionIf the total number of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities to be sold (other than by the Company) that the underwriters determine in their reasonable discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters and the Company determine in good faith their sole discretion will not jeopardize the success of the offering. In the event that the underwriters determine that, following the cutbacks described in the preceding sentence, less than all of the Registrable Securities requested to be registered by Holders can be included in such offering, then the Registrable Securities held by Holders that are included in such offering (the securities so included to shall be apportioned pro rata among the selling Holders according to based on the total amount number of securities entitled to be included therein owned Registrable Securities held by each all selling Holder Holders or in such other proportions as shall mutually be agreed to by all such selling Holders). To facilitate the allocation of shares in accordance with the above provisions, but the Company or the underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. Notwithstanding the foregoing, in no event shall (i) the number of Registrable Securities included in the offering be reduced unless all other securities (other than securities to be sold by the Company) are first entirely excluded from the offering (provided, however, that this clause (i) may be waived by Holders of 66.6% of all Registrable Securities) and (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial OfferingIPO, in which case the selling Holders may be completely excluded further if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingoffering. For purposes of the preceding provision concerning apportionmentapportionment pursuant to this Section 2.6, for any selling stockholder that which is a Holder of Registrable Securities and that which is a venture capital fund, private equity an investment fund, partnership, limited liability company or corporation, the affiliated venture capital fundspartners, private equity funds, partnersmembers, retired partners, members retired members, stockholders and stockholders Affiliates of such Holder, or the estates and family members of any such partners, retired partners, members and retired members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” ”, and any pro pro-rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced “selling Holder,” as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 1.3 to include any of the Holders’ securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holders), stockholders) but in no event shall (i) the aggregate amount of securities of the selling Holders and the holders of Registrable Shares (as defined in the Investor Rights Agreement dated as of the closing of the Company’s Series A convertible preferred stock financing (the “New Rights Agreement”)) included in the offering be reduced below thirty fifty percent (3050%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders a Founder be included if any securities held by Investors any selling Holder are excluded, excluded or (iii) shares of any other selling shareholder, other than a holder of Registrable Shares, be included in such registration which would reduce the number of shares which may be included by Holders, without the prior written consent of Holders of not less than 66-2/3% of the Registrable Securities proposed to be included sold in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingoffering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holderstockholder,” and any pro pro-rata reduction with respect to such “selling Holderstockholder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced “selling stockholder,” as a result defined in this sentence. For purposes of marketing factors determining the apportionment of shares to be registered pursuant to Section 1.31.3 of this Agreement, such apportionment shall be made in accordance with Section 4.2 of the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionNew Rights Agreement.”
Appears in 1 contract
Sources: Investors’ Rights Agreement (Seattle Genetics Inc /Wa)
Underwriting Requirements. The In connection with any offering involving an underwriting of securities being issued by the Company, the Company shall not be required under Section 1.3 to include any of the Holders’ securities in any registration and such underwriting to which this Section 1.3 is applicable, unless such Holders accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by it, and then only in such quantity, if any, as in the opinion of the underwriters, marketing factors allow. In additionIf the managing underwriter for the offering shall advise the Company in writing that the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities to be sold other than by the Company that marketing factors allow, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith will not jeopardize the success of the offering managing underwriter believes marketing factors allow (the securities so included to be apportioned pro rata among reduced as follows:
(a) all securities which stockholders other than the selling Company and the Holders according seek to include in the offering shall be excluded from the offering to the total amount extent limitation on the number of securities entitled shares included in the underwriting is required, and (b) if further limitation on the number of shares to be included therein owned in the underwriting is required, then the number of shares held by Holders that may be included in the underwriting shall be reduced so that the number of shares included in the underwriting are pro rata in accordance with the number of shares of Registrable Securities held by each selling Holder or in such other proportions as shall mutually be agreed to by such selling HoldersHolder), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, initial public offering of the Company’s securities in which case the selling Holders may be completely excluded if the underwriters make managing underwriter makes the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) Company are first entirely excluded from the underwritingincluded. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that shareholder which is a Holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, a limited liability company or a corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members, retired members and stockholders shareholders of such Holder, or the estates and family members of any such partners, retired partners, members and retired members and any trusts for the benefit of any of the foregoing persons shall collectively be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced “selling Holder,” as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The Company (a) In connection with any offering involving an underwriting of shares being issued by the Corporation, the Corporation shall not be required to include in any registration and underwriting to which this Section 1.3 is applicable, of the Holders' Registrable Securities in such underwriting unless they accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company Corporation and the underwriter or underwriters selected by itit (which terms shall be customary), and, in connection with any such offering under Section 3, only in such quantity as will not exceed a limitation on the amount of securities to be underwritten, such limitation to be reasonably determined by the underwriters, or their representatives based on marketing factors (the "Underwriters' Limitation"). In additionIf the total amount of securities that all Holders request to be included in an underwritten offering exceeds the Underwriters' Limitation on the amount of securities, the Company Corporation shall only be required to include in the offering only that number so many of Registrable Securities that the securities of the selling Holders as the underwriters determine in good faith reasonably believe will not jeopardize the success of the offering exceed that limitation (the securities so included to be apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each said selling Holder Holders, or in such other proportions as shall mutually be agreed to by such selling Holders), but provided that (in the case of an offering subject to Section 3) no event such reduction shall (i) be made with respect to any securities offered by the amount of Corporation for its own account, and provided further that no securities of any stockholder who is not a Holder shall be included unless all securities which the selling Holders and their permitted assignees have requested to be included in are included.
(b) With respect to any underwriting of shares to be registered under Section 2 or Section 11, the offering be reduced below thirty percent (30%) Holders of a majority of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of then outstanding Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons offering shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities designate the managing underwriter or underwriters. In all other circumstances under such Sections and in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, connection with such shares to be allocated among (i) firstregistrations under Section 3, the Holders requesting to include Registrable Securities in such registration statement based on Board of Directors of the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on Corporation shall designate the pro rata percentage of shares held by such person, assuming conversionmanaging underwriter or underwriters.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering ------------------------- involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by it, and then only in such quantity as the underwriters determine in their sole discretion will not adversely affect their ability to market the offering. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of adversely affect their ability to market the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holders), stockholders) but in no event shall (ia) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, initial public offering of the Company's securities in which case the selling Holders stockholders may be completely excluded reduced to a lesser percentage if the underwriters make the determination described above and no other stockholder’s 's securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iiib) the number of notwithstanding clause (a) above, any shares of Registrable Securities being sold by a stockholder exercising a demand registration right similar to that granted in Section 1.2 be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” stockholder", and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder", as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Investors' Rights Agreement (Metawave Communications Corp)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 1.3 to include any of the Holders’ securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders according to the total amount offering. Notwithstanding any other provision of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders)this Section 1.8, but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make advise the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities to that may be so included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration allocated as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among follows: (ia) first, the Company, for its own account, unless it is a registration initiated pursuant to Section 1.2 or Section 1.4, (b) second, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, ; and (iic) secondthird, others requesting to include shares the Company, which the Company may allocate, at its discretion, for its own account in connection with a registration initiated pursuant to Section 1.2 or Section 1.4, or for the account of other holders or employees of the Company; provided, however, in no event shall the amount of securities of the selling Holders included in the offering be reduced below twenty-five (25%) of the total amount of securities included in such registration statement offering, unless such offering is the initial public offering of the Company’s securities, in which case, the selling shareholders may be excluded if the underwriters make the determination described above and no other shareholder’s securities are included. For purposes of the preceding sentence concerning apportionment, for any selling shareholder which is a Holder of Registrable Securities and which is a partnership, corporation or limited liability company, the partners, retired partners, shareholders, members or former members of such holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling shareholder,” and any pro-rata reduction with respect to such “selling shareholder” shall be based on upon the pro rata percentage aggregate amount of shares held carrying registration rights owned by all entities and individuals included in such person, assuming conversion“selling shareholder,” as defined in this sentence.
Appears in 1 contract
Sources: Investor Rights Agreement (Imperium Renewables Inc)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.2 or 1.4 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be first taken from the Holders of Registrable Securities and apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holders)stockholders, but in no event shall (i) the amount of securities of the selling Holders included in the offering any shares being sold by a stockholder exercising registration rights pursuant to Section 1.2 be reduced below thirty percent (30%) of the total amount of securities included in excluded from such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision sentence concerning apportionment, for any selling stockholder that Holder which is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons persons, shall be deemed to be a single “"selling Holderstockholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Investor Rights Agreement (Advanced Biotherapy Inc)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. All securities to be sold by the Company shall be included in the offering (prior to the inclusion of any Registrable Shares. The securities so included to be sold by shareholders shall be apportioned pro rata among the selling Holders shareholders according to the total amount of securities entitled to be included therein owned by each selling Holder shareholder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingshareholders. For purposes of the preceding provision sentence concerning apportionment, for any selling stockholder shareholder that is a Holder holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital fundspartnerships, private equity funds, the partners, retired partners, members partners and stockholders shareholders of such Holderholder, or the estates and family members of any such partners, partner and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holdershareholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” shareholder" shall be based upon the aggregate amount of Registrable Securities shares carrying Registrations rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling shareholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any -------------------------- offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 3.2 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then subject to the terms set forth below only in such quantity as will not in the opinion of the underwriters jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters reasonably believe compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith believe will not jeopardize the success of the offering (the securities so included to be apportioned pro pro-rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holdersstockholders), but in no event shall (i) provided, however, that the amount of Registrable Securities and other securities of the selling Holders included in excluded from the offering may not be reduced below thirty to less than forty percent (3040%) of the total amount of securities included in such offering; and further provided, unless such offering is the Initial Offeringhowever that Firemen's Insurance will be entitled to include in each public offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and it shall so elect, no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of fewer than 507,000 shares of Registrable Securities (subject to be included in such underwriting be reduced unless all appropriate adjustment for stock splits, stock dividends, combinations, other securities (other than those of the Company) are first entirely excluded from the underwritingrecapitalizations and similar events). For purposes of the parenthetical in the preceding provision sentence concerning apportionment, for any selling stockholder that which is a Holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holderstockholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Preferred Stock Conversion and Registration Rights Agreement (Cna Financial Corp)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under this Section 2(b) to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other person entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by Alexander, ▇▇▇▇▇▇▇ and/or other stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the offering. Allocation of securities so included to be apportioned pro rata among sold in any such offering by the selling Holders according Holders, Alexander, ▇▇▇▇▇▇▇ and/or other stockholders of the Company shall be made on a priority basis as follows:
(A) First, to stockholders of the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of Company holding securities of the selling Company entitled to inclusion therein based upon a registration rights agreement entered into with the Company prior to the date hereof; and
(B) Second, on a pro rata basis among Alexander, ▇▇▇▇▇▇▇ and the Holders included (based upon the proration set forth in the offering be reduced below thirty percent (30%Section 2(b)(i)(B) of the total amount of securities included in such offeringhereof); provided, unless such offering is the Initial Offeringhowever, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) that the number of shares of Registrable Securities to be included in such underwriting offering shall not be reduced unless all other the securities (other than those of proposed to be included in the Company) registration by Alexander and ▇▇▇▇▇▇▇ are first entirely excluded from the underwritingalso reduced proportionately. For purposes of the preceding provision concerning apportionmentallocation of securities to be included in any offering, for any selling stockholder that which is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder (and in the case of a partnership, any affiliated partnerships), or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holderstockholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion individuals included in such registration "selling stockholder," as provided defined in this sentence. To facilitate the allocation of shares in accordance with the above does not agree to the terms of any such underwritingprovisions, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if may round the number of shares of Registrable Securities allocated to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal any Holder to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionnearest 100 shares.
Appears in 1 contract
Sources: Registration Rights Agreement (Multi Link Telecommunications Inc)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (any reduction in the securities so included to shall be first taken from the securities of selling stockholders who are former employees of the Company; thereafter, any remaining reduction shall be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each such selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holders), stockholders) but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case the selling Holders stockholders may be completely excluded if the underwriters make the determination described above and no other stockholder’s 's securities are included, included or (ii) notwithstanding (i) above, any securities held shares being sold by Founders a stockholder exercising a demand registration right similar to that granted in Section 1.2 be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.selling
Appears in 1 contract
Underwriting Requirements. The In connection with any offering ------------------------- involving an underwriting of shares of the Company's capital stock, the Company shall not be required to include in any registration and underwriting to which under this Section 1.3 is applicable, to include any of the Registrable Securities Holders' securities in such underwriting unless they accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with an underwriter or underwriters selected by itthe Company, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are includedabove, (ii) any provided, however, that the amount of securities held by Founders be included if any securities held by selling Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting offering shall not be reduced unless all other securities below thirty percent (other than those 30%) of the Companytotal amount of securities included in such offering unless no other shareholder's securities are included, or (ii) are first entirely notwithstanding (i) above, any shares being sold by a shareholder exercising a demand registration right similar to that granted in Section 1.2 be excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder shareholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” " and any pro rata reduction with respect to such “"selling Holder” " shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to any Holder or holder disapproves of the terms of any such underwriting, such person shall also be excluded he may elect to withdraw therefrom by written notice from to the Company or and the managing underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from , and shall not be transferred in a public distribution prior to 180 days after the effective date of the registration and if statement relating thereto, or such other shorter period of time as the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionunderwriters may require.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required to include in any registration and underwriting to which under this Section 1.3 is applicable, to include any of the Registrable Securities Holders' securities in such underwriting unless they accept the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with an underwriter or underwriters selected by itthe Company, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s shareholder's securities are included, or (ii) notwithstanding (i) above, any securities held shares being sold by Founders a shareholder exercising a demand registration right similar to that granted in Section 1.2 be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder shareholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders shareholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” " and any pro rata reduction with respect to such “"selling Holder” " shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of Common Stock pursuant to Section 2.1, the Company shall not be required to include in any registration and underwriting to which this Section 1.3 is applicable, of the Seller's Registrable Securities in such underwriting unless the Seller accepts the terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and its underwriters, and then only in such quantity as the underwriter or underwriters selected in their sole discretion determine will not jeopardize the success of the offering by itthe Company. In additionIf the total number of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the number of securities to be sold (other than by the Company) that the underwriters in their reasonable discretion determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities sold other than by the Company, including Registrable Securities that Securities, which the underwriters and the Company in their sole discretion determine in good faith will not jeopardize the success of the offering (offering. If the securities underwriters so included to be apportioned pro rata among determine that less than all of the selling Holders according to the total amount of securities entitled securities, including Registrable Securities, requested by shareholders to be included therein in such offering can be included in such offering, then the securities, including the Registrable Securities, that are included in such offering for the benefit of shareholders shall be allocated to such shareholders, including the Seller, in proportion (as nearly as practicable) to the number of securities with registration rights, including Registrable Securities, owned by each selling Holder shareholder, including the Seller, who is participating in such offering, or in such other proportions as shall mutually be agreed to by such selling Holders)them. Notwithstanding the foregoing, but in no event shall (i) the amount number of securities of the selling Holders securities, including Registrable Securities, included in the offering for the benefit of shareholders be reduced below thirty percent (30%) of the total amount number of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversion.
Appears in 1 contract
Sources: Registration Rights Agreement (Superior Group of Companies, Inc.)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 9.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holdersstockholders; provided, however, for purposes of such pro rata apportionment the Founder shall be deemed to own only 50% of the Registrable Securities that he would be otherwise entitled to include in such registration); provided that the underwriters furnish to the selling Holders a statement certifying that, in the judgment of the underwriters, the inclusion of such securities would have a material adverse effect on the offering, but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced by operation of this Section 9.8 below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, initial public offering of the Company's securities in which case the selling Holders stockholders may be completely excluded if the underwriters make the determination described above and no other stockholder’s 's securities are included, included or (ii) notwithstanding (i) above, any securities held shares being sold by Founders a stockholder exercising a demand registration right similar to that granted in Section 9.2 be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwritingsuch offering. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holderstockholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Stock Purchase and Loan Agreement (Thinking Tools Inc)
Underwriting Requirements. The In connection with any offering ------------------------- involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters) (provided, however, that in no event shall the Holders be obligated to provide indemnification on claims arising out of facts not provided by the Holders or in an amount exceeding the net proceeds realized by the Holders), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holdersstockholders), but in no event shall (i) the amount of securities of the selling Holders included any shares being sold by a stockholder exercising a demand registration right similar to that granted in the offering Section 1.2 or Section 1.12 be reduced below thirty percent (30%) of the total amount of securities included in excluded from such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that is a Holder holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital fundspartnerships, private equity funds, the partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holderstockholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Investors' Rights Agreement (Chorum Technologies Inc)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 1.3 to include any of the Holders’ securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters reasonably determine will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters reasonably determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters reasonably determine in good faith will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among first to the selling Holders on a pro rata basis, based on the total number of Registrable Securities held by the Holders, and second to any other selling stockholders pro rata according to the total amount of securities entitled to be included therein owned by each such selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling HoldersHolders and other selling stockholders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons persons, shall be deemed to be a single “selling Holder,” stockholder”, and any pro pro-rata reduction with respect to such “selling Holderstockholder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced “selling stockholder,” as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Investors’ Rights Agreement (StubHub Holdings, Inc.)
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itthose persons entitled to select the underwriters, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata rata, according to the total amount of securities entitled to be included, among the selling Holders Holders' Registrable Securities first, and then, to the extent that the number of the Holders' Registrable Securities to be included in such offering is less that the total amount of securities entitled to be included therein, apportioned pro rata, according to the total amount of securities entitled to be included therein owned by each therein, among the other selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), shareholders) but in no event shall (i) the amount of securities Registrable Securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of the Holders' Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of offering is less that the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate total amount of Registrable Securities owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities entitled to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversiontherein.
Appears in 1 contract
Sources: License and Supply Agreement (Biozhem Cosmeceuticals Inc)
Underwriting Requirements. The In connection with any offering involving ------------------------- an underwriting of shares being issued by the Company, the Company shall not be required under Paragraph 2 to include any of the Holder's securities in any registration and such underwriting to which this Section 1.3 is applicable, unless it accepts the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected and then only in such quantity as will not, in the opinion of the underwriters, jeopardize the success of the offering by itthe Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters reasonably believe compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities that Securities, which the underwriters determine in good faith believe will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities that all Registrable Securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to Holder shall be included in such underwriting be reduced unless all registration, and if this is not possible, then, prior to including securities owned by any other securities (other than those of the Company) are first entirely excluded from the underwritingselling stockholders. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder stockholder, including the Holder, that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holderstockholder,” " and any pro rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Underwriting Requirements. The In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.3 to include any of the Holders' securities in any registration and such underwriting to which this Section 1.3 is applicable, unless they accept the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. In additionIf the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned appor tioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holders), stockholders) but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities 11 included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, or (ii) notwithstanding (i) above, any securities held shares being sold by Founders a stockholder exercising a demand registration right similar to that granted in Section 1.2 be included if any securities held by Investors are excludedexcluded from such offering, or (iii) the number of shares of Registrable Securities to be included including, without limitation, rights granted in such underwriting be reduced unless all other securities (other than those Section 1 of the Company) are first entirely excluded from the underwriting1997 Rights Agreement. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that is a Holder holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holderstockholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder," as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
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Sources: Registration Rights Agreement (Net Perceptions Inc)
Underwriting Requirements. The Company In connection with any offering under Section 3 hereof involving an underwriting of shares of TITAN's capital stock, TITAN shall not be required to include any of HMRI's REGISTRABLE SECURITIES in any registration and such underwriting to which this Section 1.3 is applicable, unless HMRI accepts the Registrable Securities terms of any Holder that fails to execute the underwriting agreement entered into as agreed upon between the Company TITAN and the underwriter or underwriters selected by itit (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by TITAN. In additionIf the total amount of securities, including REGISTRABLE SECURITIES, requested by stockholders to be included in such offering exceeds the Company amount of securities sold other than by TITAN that the underwriters determine in their sole discretion is compatible with the success of the offering, then TITAN shall be required to include APPENDIX D (Cont.) in the offering only that number of Registrable Securities such securities, including REGISTRABLE SECURITIES, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling Holders stockholders according to the total amount of securities entitled to be included therein owned by each selling Holder stockholder or in such other proportions as shall mutually be agreed to by such selling Holdersstockholders), but in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) any securities held by Founders be included if any securities held by Investors are excluded, or (iii) the number of shares of Registrable Securities to be included in such underwriting be reduced unless all other securities (other than those of the Company) are first entirely excluded from the underwriting. For purposes of the preceding provision parenthetical concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, private equity fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, retired partners, members partners and stockholders of such Holderholder, or the estates and family members of any such partners, partners and retired partners, members partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” stockholder", and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned of record by all such related entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be individuals included in such registration was previously reduced "selling stockholder", as a result of marketing factors pursuant to Section 1.3, the Company shall then offer to all persons who have retained the right to include securities defined in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among (i) first, the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion, and (ii) second, others requesting to include shares in such registration statement based on the pro rata percentage of shares held by such person, assuming conversionthis sentence.
Appears in 1 contract
Sources: Worldwide License Agreement (Titan Pharmaceuticals Inc)