Common use of Underwritten Shelf Offering Clause in Contracts

Underwritten Shelf Offering. (c) At any time that a shelf registration statement covering Registrable Securities pursuant to Section 2 or Section 3 is effective, if any Holder delivers a notice to the Company (a “Take-Down Notice”) stating that it intends to sell all or part of its Registrable Securities included by it on the shelf registration statement (a “Shelf Offering”), then, the Company shall amend or supplement the shelf registration statement as may be necessary in order to enable such Registrable Securities to be distributed pursuant to the Shelf Offering (taking into account the inclusion of Registrable Securities by any other Holders pursuant to this Section 4(a)). In connection with any Shelf Offering, including any Shelf Offering that is an underwritten offering, the Company shall deliver the Take-Down Notice to all other holders of Registrable Securities included on such shelf Registration Statement and permit each such Holder to include its Registrable Securities included on the shelf Registration Statement in the Shelf Offering if such holder notifies the proposing holder(s) and the Company within five (5) business days after delivery of the Take-Down Notice to such Holder. (d) The Company shall have no obligation to effect an underwritten offering under this Section 4 on behalf of the holders of Registrable Securities electing to participate in such offering unless the expected gross proceeds from such offering exceed $25,000,000. (e) If a Shelf Offering of Registrable Securities included in a Registration Statement is to be conducted as an underwritten offering, then the Holders of the majority of the Registrable Securities included in a Registration Statement shall select the investment banking firm or firms to act as the lead underwriter or underwriters in connection with such offering; provided, that such selection shall be reasonably acceptable to the Company. If, in connection with any such underwritten offering, the managing underwriter(s) advise(s) the Company that in its or their reasonable opinion the number of securities requested to be included in such offering exceeds the number which can be sold without adversely affecting the marketability of such offering (including an adverse effect on the per share offering price), the Company will include in such registration or Prospectus only such number of securities that in the reasonable opinion of such underwriter(s) can be sold without adversely affecting the marketability of the offering (including an adverse effect on the per share offering price), which securities will be so included in the following order of priority: (i) first, the Registrable Securities of the Holders who have requested registration of Registrable Securities pursuant to this Section 4, pro rata on the basis of the aggregate number of such securities or shares owned by each such person, or as the Holders may otherwise agree amongst themselves, (ii) second, the Common Stock and other securities the Company proposes to sell, and (iii) third, any other securities of the Company that have been requested to be so included, subject to the terms of this Agreement. No Holder may participate in any underwritten registration under this Section 4 unless such ▇▇▇▇▇▇ (i) agrees to sell the Registrable Securities it desires to include in the underwritten offering on the basis provided in any underwriting arrangements in customary form and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements. (f) In addition to Sections (a) and (b) of this Section 4, a Shelf Offering of Registrable Securities included on a Piggyback Registration Statement initiated by Holders shall be subject to the procedures set forth in Section 3(b).

Underwritten Shelf Offering. The Holders may, on up to four (c4) At any time that occasions after a shelf registration statement covering Registrable Securities pursuant to Section 2 or Section 3 is becomes effective, if any Holder delivers deliver a written notice to the Company specifying that the sale of some or all of the Registrable Securities subject to such shelf registration is intended to be conducted through an underwritten offering or block trade or similar registered offering through a broker, sales agent or distribution agent, whether as agent or principal, so long as the anticipated gross proceeds of such registered offering is not less than fifteen million dollars (a “Take-Down Notice”$15,000,000) stating that it intends (unless the Holders are proposing to sell all or part of its their remaining Registrable Securities included by it on the shelf registration statement Securities) (a in each case, an “Underwritten Shelf Offering”), then, the Company shall amend or supplement the shelf registration statement as may be necessary in order to enable such Registrable Securities to be distributed pursuant to the Shelf Offering (taking into account the inclusion of Registrable Securities by any other Holders pursuant to this Section 4(a)). In connection with any Shelf Offering, including any Shelf Offering that is an underwritten offering, the Company shall deliver the Take-Down Notice to all other holders of Registrable Securities included on such shelf Registration Statement and permit each such Holder to include its Registrable Securities included on the shelf Registration Statement in the Shelf Offering if such holder notifies the proposing holder(s) and the Company within five (5) business days after delivery of the Take-Down Notice to such Holder. (d) The Company shall have no obligation to effect an underwritten offering under this Section 4 on behalf of the holders of Registrable Securities electing to participate in such offering unless the expected gross proceeds from such offering exceed $25,000,000. (e) If a Shelf Offering of Registrable Securities included in a Registration Statement is to be conducted as an underwritten offering, then the Holders of the majority of the Registrable Securities included in a Registration Statement shall select the investment banking firm or firms to act as the lead underwriter or underwriters in connection with such offering; provided, that such selection shall be reasonably acceptable to the Company. If, in connection with any such underwritten offering, the managing underwriter(s) advise(s) the Company that in its or their reasonable opinion the number of securities requested to be included in such offering exceeds the number which can be sold without adversely affecting the marketability of such offering (including an adverse effect on the per share offering price), the Company will include in such registration or Prospectus only such number of securities that in the reasonable opinion of such underwriter(s) can be sold without adversely affecting the marketability of the offering (including an adverse effect on the per share offering price), which securities will be so included in the following order of priority: (i) first, the Registrable Securities of the Holders who have requested registration of Registrable Securities pursuant to this Section 4, pro rata on the basis of the aggregate number of such securities or shares owned by each such person, or as the Holders may otherwise agree amongst themselves, (ii) second, the Common Stock and other securities the Company proposes to sell, and (iii) third, any other securities of the Company that have been requested to be so included, subject to the terms of this Agreement. No Holder may participate in any registration hereunder which is underwritten registration under this Section 4 unless such ▇▇▇▇▇▇ Holder (ia) agrees to sell the Registrable Securities it desires to include in the underwritten offering such Holder’s securities on the basis provided in any underwriting arrangements in customary form approved by the Holder and (iib) subject to the qualifications in Section 3.1.6, completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.. In the event of an Underwritten Shelf Offering: (f) In addition to Sections (a) and (b) 2.5.1 The Holders of this Section 4, a majority of the Registrable Securities participating in the Underwritten Shelf Offering shall select the managing Underwriter or underwriters to administer the Underwritten Shelf Offering; provided, that the choice of Registrable Securities included on a Piggyback Registration Statement initiated by Holders such managing Underwriter or Underwriters shall be subject to the procedures set forth consent of the Company, which is not to be unreasonably withheld, conditioned or delayed. 2.5.2 Notwithstanding any other provision of this Section 2.5, if the managing Underwriter or Underwriters of a proposed Underwritten Shelf Offering advises the board of directors of the Company that in Section 3(b)its or their opinion the number of Registrable Securities requested to be included in such Underwritten Shelf Offering exceeds the number which can be sold in such Underwritten Shelf Offering in light of market conditions, the Registrable Securities shall be included on a Pro Rata basis upon the number of securities that each Holder shall have requested to be included in such offering. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the managing Underwriter or Underwriters.