SHARES ELIGIBLE FOR FUTURE SALE
Prior to this offering, there has been no public market for our stock. We cannot predict the effect, if any, that market sales of shares or the availability of shares for sale will have on the market price prevailing from time to time. Sales of our Class A common stock in the public market after the restrictions lapse as described below, or the perception that those sales may occur, could cause the prevailing market price to decrease or to be lower than it might be in the absence of those sales or perceptions.
Sale of Restricted Shares
Upon completion of this offering, we will have outstanding shares of common stock. The shares of Class A common stock being sold in this offering will be freely tradable, other than by any of our “affiliates” as defined in Rule 144(a) under the Securities Act, without restriction or registration under the Securities Act. All remaining shares were issued and sold by us in private transactions and are eligible for public sale if registered under the Securities Act or sold in accordance with Rule 144 or Rule 701 under the Securities Act. These remaining shares are “restricted securities” within the meaning of Rule 144 under the Securities Act.
As a result of the selling restrictions and the provisions of Rules 144, 144(k) and 701 described below, the restricted securities will be available for sale in the public market as follows:
| | | | |
Days After the Date of this Prospectus
| | Number of Shares
Eligible for Sale in U.S. Public Market/ Percent of Outstanding Common Stock
| | Comment
|
On the date of this prospectus | | | | |
| | |
At days after the date of this prospectus and various times thereafter | | | | |
| | |
At days after the date of this prospectus and various times thereafter | | | | |
| | |
At days after the date of this prospectus and various times thereafter | | | | |
| | |
At days after the date of this prospectus and various dates thereafter | | | | |
Selling Restriction Agreements
We have entered into an agreement with the parties to our Investors Rights Agreement, except for our executive officers, that provides that they will limit sales of any common stock owned by them following the date of this prospectus, as follows: % of their shares become eligible for sale days after the date of this prospectus; % of their shares become eligible for sale days after the date of this prospectus; and % of their shares become eligible for sale days after the date of this prospectus.
We have entered into agreements with the remaining holders of substantially all of our common stock, including our executive officers, which provide that they will limit sales of any common stock owned by them
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for 180 days following the date of this prospectus, except that they may sell a portion of their shares earlier, as follows:
| | • | | % of their shares become eligible for sale during a First Trading Window that begins days after the date of this prospectus (unless that day falls in the third month of a calendar quarter, in which case the First Trading Window begins on the third business day after the next public release of our quarterly financial results following the date of this prospectus) and that ends on the last day of the second month of the calendar quarter in which the First Trading Window begins. |
| | • | | % of their shares become eligible for sale during a Second Trading Window that begins on the third business day after the public release of quarterly financial results following the close of the First Trading Window and that ends on the last day of the second month of the calendar quarter in which the Second Trading Window begins. |
| | • | | For any employee that is not eligible to be a selling stockholder but that holds common stock or options to purchase common stock that vest before the end of the First Trading Window, % of that employee’s shares become eligible for sale during the First Trading Window at the later of their initial vesting date and the start of the First Trading Window. |
| | • | | For any employee that is not eligible to sell during the First Trading Window but that holds common stock or options to purchase common stock that vest before the end of the Second Trading Window, % of that employee’s shares become eligible for sale during the Second Trading Window at the later of their initial vesting date and the start of the Second Trading Window. |
As these shares become available for sale and are sold into the market, the market price of our Class A common stock could decline. After a restricted person’s holding of common stock have been released from the restrictions on sale described above they will be available for sale to the public subject satisfaction of the requirements of Rule 144 or Rule 701, which are described below.
Lock-Up Arrangements
We have agreed with the underwriters that for a period of 180 days after the date of this prospectus, we will not sell any shares of our common stock, or securities convertible into shares of our common stock, without the prior written consent of Morgan Stanley & Co. Incorporated and Credit Suisse First Boston LLC. This agreement is subject to certain exceptions, including an exception allowing us to issue an unlimited number of shares in connection with mergers or acquisition transactions, joint ventures or other strategic corporate transactions. Morgan Stanley & Co. Incorporated and Credit Suisse First Boston LLC may release us from these lock-up arrangements at any time without notice.
Rule 144
In general, under Rule 144, as currently in effect, a person who owns shares that were acquired from us or an affiliate of us at least one year prior to the proposed sale is entitled to sell upon expiration of the selling restrictions described above, within any three-month period beginning 90 days after the date of this prospectus, a number of shares that does not exceed the greater of:
| | • | | 1% of the number of shares of common stock then outstanding, which will equal approximately shares immediately after this offering; or |
| | • | | the average weekly trading volume of the common stock during the four calendar weeks preceding the filing of a notice on Form 144 with respect to such sale. |
Sales under Rule 144 are also subject to certain manner of sale provisions and notice requirements and to the availability of current public information about us. Rule 144 also provides that our affiliates who sell shares of our common stock that are not restricted shares must nonetheless comply with the same restrictions applicable to restricted shares with the exception of the holding period requirement.
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Rule 144(k)
Under Rule 144(k), a person who is not deemed to have been one of our affiliates for purposes of the Securities Act at any time during the 90 days preceding a sale and who has beneficially owned the shares proposed to be sold for at least two years, including the holding period of any prior owner other than our affiliates, is entitled to sell such shares without complying with the manner of sale, public information, volume limitation or notice provisions of Rule 144. Therefore, unless otherwise restricted, “144(k) shares” may be sold immediately upon the completion of this offering.
Rule 701
In general, under Rule 701 as currently in effect, any of our employees, consultants or advisors who purchases shares from us in connection with a compensatory stock or option plan or other written agreement in a transaction that was completed in reliance on Rule 701 and complied with the requirements of Rule 701 is eligible to resell such shares 90 days after the effective date of this offering in reliance on Rule 144, but without compliance with certain restrictions, including the holding period, contained in Rule 144.
Stock Options
We intend to file a registration statement on Form S-8 under the Securities Act for shares of our common stock subject to options outstanding or reserved for issuance under our stock plans and shares of our common stock issued upon the exercise of options by employees. We expect to file this registration statement as soon as practicable after this offering. In addition, we intend to file a registration statement on Form S-8 or such other form as may be required under the Securities Act for the resale of shares of our common stock issued upon the exercise of options that were not granted under Rule 701. We expect to file this registration statement as soon as permitted under the Securities Act. However, none of the shares registered on Form S-8 will be eligible for resale until expiration of the selling restriction agreements to which they are subject.
Registration Rights
Upon completion of this offering, the holders of 79,803,760 shares of our common stock, assuming the exercise of outstanding warrants to purchase registrable securities, may demand that we register their shares under the Securities Act or, if we file another registration statement under the Securities Act, may elect to include their shares in such registration. If these shares are registered, they will be freely tradable without restriction under the Securities Act. For additional information, see “Description of Capital Stock—Registration Rights.”
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http://www.sec.gov/Archives/edgar/data/1288776/...12504073639/ds1.htm
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