Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 hereof, the Company covenants and agrees as follows: (a) The Company shall use its best efforts to file a registration statement within forty-five (45) days of receipt of any demand therefor in accordance with Section 7.1, shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested. (b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 and 7.2 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit). (c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction. (d) The Company shall indemnify the Underwriter and all other Holders of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement. (e) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement. (f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof. (g) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request. (h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution. (i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities. (j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made. (k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 2 contracts
Sources: Underwriter's Unit Warrant Agreement (Flight Safety Technologies Inc), Underwriter's Unit Warrant Agreement (Vitacube Systems Holdings Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 8 or 7.2 9 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 8 and 7.2 9 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.410(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and Holder(s), extend the other Holders, be liable for any or all actual damages (which may include damages due to a loss Exercise Period by such number of profit)days as shall equal the delay caused by the Company's failure.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), from and against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 7 of the Underwriting Agreement and relating to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementoffering.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to The Holder(s) may exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section 9 hereof, or permit any other registration statement to be or remain effective during the Underwriter and all effectiveness of a registration statement filed pursuant to Section 9 hereof, other Holders than a secondary offering of the Registrable Securities participating in the offering copies equity securities of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditors, all to Warrant Securities representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.securities
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (ix) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (iiy) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable National Association of Securities covered by such registration statementDealers, at any time when a prospectus relating thereto is required Inc. ("NASD") or an Exchange. Such investigation shall include access to be delivered under books, records and properties and opportunities to discuss the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light business of the circumstances under which they were madeCompany with its officers and independent auditors, all to such reasonable extent and upon receipt of at such notice the Underwriter reasonable times and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or as often as any such Holder, the Company Holder or underwriter shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madereasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters, which may be the Underwriter. Such agreement shall be satisfactory in form and substance to the Company, and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter; provided however, that no Holder shall be required to make any representations, warranties or covenants or grant any indemnity to which it shall object in any such underwriting agreement. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(l) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 2 contracts
Sources: Warrant Agreement (Genetic Vectors Inc), Warrant Agreement (Genetic Vectors Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 hereof, the The Company covenants and agrees as follows:
(a) The In connection with any registration under Section 7.4 hereof, the Company shall use its best efforts to file a registration statement within forty-five the Registration Statement as expeditiously as possible, but in any event no later than thirty (4530) business days of following receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement such Registration Statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result holder of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs costs, fees and expenses (excluding other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the Underwriter's and holders of the other Holders' counsel and any underwriting or selling commissions), fees and expenses Registrable Securities) in connection with all registration statements Registration Statements filed pursuant to Sections 7.1 7.3. and 7.2 7.4.(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement the Registration Statement for offering and sale under the securities or blue sky laws of such states as are reasonably are requested by the Underwriter and the other Holdersholders of such securities, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders any holder of the Registrable Securities to be sold pursuant to any registration statement Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls such Underwriter holder or Holders underwriter or person deemed to be an underwriter within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Underwriters contained in Section 5 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Any holder of the Registrable Securities to be sold pursuant to a registration statementRegistration Statement, and their such Holder's successors and assigns, shall severally, and not jointly, indemnify indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such HoldersHolder, or their such Holder's successors or assigns, for specific inclusion in such registration statement Registration Statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders any Holder to exercise their Underwriter's Unit the Warrants or the Underwriter's Warrants held by such Holder prior to the initial filing of any registration statement Registration Statement or the effectiveness thereof.
(g) The Company shall promptly deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration statement in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and permit memoranda and to the Underwriter and the other Holders managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other such Holder of the Registrable Securities or managing underwriter shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 2 contracts
Sources: Warrant Agreement (American Marine Recreation Inc), Warrant Agreement (American Marine Recreation Inc)
Covenants of the Company With Respect to Registration. In connection with any registration registrations under Section 7.1 or 7.2 Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five (45) days of receipt of any demand therefor therefor; provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in accordance with Section 7.1a report on Form 10-K or Form 10-Q (or Form 10-KSB or Form 10-QSB), as the case may be. The Company shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all any registration statements statement filed pursuant to Sections 7.1 7(b) and 7.2 7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47(d) (1), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their Warrant Shares.
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the 1933 Act or Section 20(a) of the Securities Exchange Act of 1934, as amended 1934 (the "1934 Exchange Act"), against all losslosses, claimclaims, damagedamages, expense expenses or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the 1933 Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Underwriters contained in Section 5 6 of the Underwriting Agreement Agreement, and the Holder(s) shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the Underwriters have agreed to indemnify the Company contained in Section 6 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each personpersons, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Exchange Act, against all losslosses, claimclaims, damage or expense damages, expenses or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the 1933 Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 6 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g7) The Company shall deliver promptly to If the Underwriter and all other Holders manner of distribution proposed by the holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission Warrants and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with Warrant Shares is an underwritten offering which includes Registrable Securities pursuant to this Section 7underwriting, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, and if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j8) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within the first full four fiscal quarters following the effective date, make "generally available to its security holders" (within the meaning of Rule 158 under the ▇▇▇▇ ▇▇▇) an earnings statement (which need not be audited) complying with Section 11(a) of the ▇▇▇▇ ▇▇▇.
(9) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence described below and any managing underwriter, copies of all correspondence between the Commission and the Company, its counsel or auditors with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable National Association of Securities covered by such registration statementDealers, at any time when a prospectus relating thereto is required Inc. ("NASD"). Such investigation shall include access to be delivered under books, records and properties and opportunities to discuss the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light business of the circumstances under which they were madeCompany with its officers and independent auditors, all to such reasonable extent and upon receipt of at such notice the Underwriter reasonable times and each as often as any such Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At reasonably request.
(10) In connection with an offering for which the request of the Underwriter or any such HolderHolders have demand rights, the Company shall promptly prepare enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Shares requested to be included in such underwriting. In connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter. Such underwriting agreement shall be satisfactory in form and furnish substance to the Underwriter or such Holder and each underwriter, if anyCompany, a reasonable number Majority of copies such Holders and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of a supplement that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or all the representations, warranties and covenants of the Company to or an amendment for the benefit of such prospectus as may underwriters shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement of a material fact or omit to state a material fact be required to be stated therein make any representations or necessary warranties to make or agreements with the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants Company or the Common Shares underlying the Underwriter's Warrants, shall mean in excess underwriters except as they may relate to such Holders their ownership and their intended methods of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Actdistribution.
Appears in 2 contracts
Sources: Underwriters' Warrant Agreement (Stratus Services Group Inc), Underwriters' Warrant Agreement (Stratus Services Group Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Warrant Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested. Notwithstanding the foregoing, the Company shall be entitled to postpone, for a period of not more than sixty (60) days after receipt of a request to effect a registration, the filing of any registration statement otherwise required to be prepared and filed by it pursuant to Section 7.3 hereof if, at any time it receives a request for registration, the Board of Directors of the Company determines in its reasonable business judgment that such registration and offering would interfere with any material financing, acquisition, corporate reorganization or other material transaction or development involving the Company and promptly gives the Holders demanding registration written notice of such determination; PROVIDED that (i) upon such postponement by the Company, the Company shall be required to file such registration statement as soon as practicable after the Board of Directors of the Company shall determine, in its reasonable business judgment, that such registration and offering will not interfere with the aforesaid material financing, acquisition, corporate reorganization or other material transaction or development involving the Company, (ii) the Company may utilize this right once each year; PROVIDED, HOWEVER, that the Company shall not utilize this right more than one time unless, prior to utilizing such right, the Company delivers to the Holders an opinion of counsel to the Company, satisfactory to the Holders, to the effect that such postponement by the Company is necessary to avoid interference with a material financing, acquisition, corporate reorganization or other material transaction or development involving the Company, (iii) the Holders who made such written request to effect such registration, may, at any time in writing, withdraw such request for such registration and therefore preserve the right provided in Section 7.3 hereof for such Holders to again request such registration, and (iv) the Exercise Period shall automatically be extended by an additional one hundred and eighty (180) days.
(b) The Company shall pay all costs (excluding including fees and expenses of one counsel to the Underwriter's and the other Holders' counsel and any Holder(s), but not underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and reasonable expenses in connection with any registration statement filed pursuant to Section 7.3(c). If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter Holder(s), extend the Exercise Period by such number of days as shall equal the delay caused by the Company's failure, and the other Holders, be liable for any or all actual damages (which as the Holder(s) may include damages due be entitled to as a loss matter of profit)law.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, provided Holder(s) shall designate; PROVIDED that the Company shall not be obligated to execute qualify to do business in any such jurisdiction or to file any general consent to service of process in any jurisdiction in any action other than one arising out of the offering or to qualify as a foreign corporation to do business under the laws sale of any such jurisdictionthe Warrant Shares.
(d) The Company shall indemnify the Underwriter and all other Holders of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(e) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders a Holder to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(ge) The Company shall deliver promptly to Except for the Underwriter and all other Holders shares of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities DealersCommon Stock held by ValueVision International, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not Company may be required to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7register, the Company shall enter into an underwriting agreement with one not permit the inclusion of any securities other than the Warrant Shares to be included in any registration statement filed pursuant to Section 7.3 hereof, or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance file any registration statement subsequent to the Companyreceipt of any notice pursuant to Section 7.3 hereof and until one hundred and eighty (180) days after the effectiveness of a registration statement filed pursuant to Section 7.3 hereof or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof; PROVIDED, HOWEVER, that in the event of an underwritten public offering, the Underwriter and each other Holder Company shall have the right to permit the inclusion of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by securities if the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit managing underwriter of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with offering advises the Company or the underwriters except as they may relate to Holders in writing that, in its opinion, the Underwriter and inclusion of such securities other than the other Holders Warrant Shares in such registration statement will not adversely affect the distribution or the offering price of the Registrable Securities and their intended methods of distributionsuch Warrant Shares.
(if) In connection with any registration statement filed pursuant to Section 7 7.2 hereof, the Company shall furnish, or cause furnish to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(g) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within fifteen (15) months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least twelve (12) consecutive months beginning after the effective date of the registration statement.
(h) The Company shall deliver promptly to each Holder participating in the offering requesting the correspondence and memoranda described below, and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request.
(i) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting, which may be any of the Underwriters. Such agreement shall be reasonably satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(j) For purposes of this Agreement, the term "Majority," in reference to the Holders of the Warrants or Warrant Shares, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Shares that (i) are not held by the Company, an officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
(k) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities Warrants and/or Warrant Shares covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At at the request of the Underwriter or any such Holder, the Company shall Holder promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 2 contracts
Sources: Warrant Agreement (Netradio Corp), Warrant Agreement (Net Radio Corp)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 (8) or 7.2 (9) hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 (h), (i) and 7.2 (j) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4(10)(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and Holder(s), extend the other Holders, be liable for any or all actual damages (which may include damages due to a loss Exercise Period by such number of profit)days as shall equal the delay caused by the Company's failure.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), from and against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 7 of the Underwriting Agreement and relating to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementoffering.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to The Holder(s) may exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section (9) hereof, or permit any other registration statement to be or remain effective during the Underwriter and all effectiveness of a registration statement filed pursuant to Section (9) hereof, other Holders than a secondary offering of the Registrable Securities participating in the offering copies equity securities of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditors, all to Warrant Securities representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.securities
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (ix) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (iiy) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable National Association of Securities covered by such registration statementDealers, at any time when a prospectus relating thereto is required Inc. ("NASD") or an Exchange. Such investigation shall include access to be delivered under books, records and properties and opportunities to discuss the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light business of the circumstances under which they were madeCompany with its officers and independent auditors, all to such reasonable extent and upon receipt of at such notice the Underwriter reasonable times and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or as often as any such Holder, the Company Holder or underwriter shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madereasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters, which may be the Underwriter. Such agreement shall be satisfactory in form and substance to the Company, and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter; provided however, that no Holder shall be required to make any representations, warranties or covenants or grant any indemnity to which it shall object in any such underwriting agreement. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(l) For purposes of this Agreement, the term "majority" Majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 2 contracts
Sources: Warrant Agreement (Investors Capital Holdings LTD), Warrant Agreement (Nations Express Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 (8) or 7.2 (9) hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 (h), (i) and 7.2 (j) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4(10)(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and Holder(s), extend the other Holders, be liable for any or all actual damages (which may include damages due to a loss Exercise Period by such number of profit)days as shall equal the delay caused by the Company's failure.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), from and against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 7 of the Underwriting Agreement and relating to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementoffering.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to The Holder(s) may exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section (9) hereof, or permit any other registration statement to be or remain effective during the Underwriter and all effectiveness of a registration statement filed pursuant to Section (9) hereof, other Holders than a secondary offering of the Registrable Securities participating in the offering copies equity securities of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditors, all to Warrant Securities representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestsecurities.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (ix) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (iiy) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable National Association of Securities covered by such registration statementDealers, at any time when a prospectus relating thereto is required Inc. ("NASD") or an Exchange. Such investigation shall include access to be delivered under books, records and properties and opportunities to discuss the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light business of the circumstances under which they were madeCompany with its officers and independent auditors, all to such reasonable extent and upon receipt of at such notice the Underwriter reasonable times and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or as often as any such Holder, the Company Holder or underwriter shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madereasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters, which may be the Underwriter. Such agreement shall be satisfactory in form and substance to the Company, and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter; provided however, that no Holder shall be required to make any representations, warranties or covenants or grant any indemnity to which it shall object in any such underwriting agreement. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(l) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 2 contracts
Sources: Underwriting Agreement (Temporary Financial Services Inc), Warrant Agreement (International Test Systems Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 9.2 or 7.2 9.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five ninety (4590) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts and to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Warrant Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested. The Company shall also file such applications and other documents as may be necessary to permit the sale of the Warrant Shares to the public during the Registration Period in those states to which the Company and the holders of the Warrants and/or Warrant Shares shall mutually agree.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 9.2 and 7.2 9.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply The Holder(s) will pay all costs, fees and expenses in connection with the provisions of registration statement filed pursuant to Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit9.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders Holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and statement.
(e) In order to provide for just and equitable contribution as set forth under the Act in Section 6 any case in which (i) any Holder of the Underwriting Warrant Shares or controlling person thereof makes a claim for indemnification but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that the express provisions of Section 9.4(d) hereof provide for indemnification in such case or (ii) contribution under the Act may be required on the part of any Holder of the Warrant Shares, or controlling person thereof, then the Company, any such Holder of the Warrant Shares, or controlling person thereof shall contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (which shall, for all purposes of this Agreement, include, but not be limited to, all costs of defense and investigation and all attorneys fees), in either such case (after contribution from others) on the basis of relative fault as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or a Holder of Warrant Shares, or controlling person thereof on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and such Holders of such securities and such controlling persons agree that it would not be just and equitable if contribution pursuant to this Section 9.4(e) were determined by pro rata allocation or by any other method which does not take account of the equitable considerations referred to in this Section 9.4(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 9.4(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(ef) The Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all any loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished in writing, by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementstatement.
(fg) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(gh) The Company shall deliver promptly furnish to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a "cold comfort" letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall promptly notify enter into an underwriting agreement with the Underwriter and each Holder managing underwriters selected for such underwriting by Holders holding a Majority of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required Warrant Shares requested to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statementunderwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as then are customarily contained in effectagreements of that type used by the managing underwriter. The Holder(s) shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, includes an untrue statement at their option, require that any or all of a material fact the representations, warranties and covenants of the Company to or omits for the benefit of such underwriters shall also be made to state any material fact and for the benefit of such Holder(s). Such Holder(s) shall not be required to be stated therein make any representations or necessary warranties to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, agreements with the Company shall promptly prepare or the underwriters except as they may relate to such Holder(s) and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number their intended methods of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madedistribution.
(k) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Shares, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's or Warrant Shares that (i) are not held by the Company, or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act or Rule 144 promulgated under the Act, or similar exemption.
Appears in 2 contracts
Sources: Warrant Agreement (Ceco Environmental Corp), Warrant Agreement (Ceco Environmental Corp)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 hereof, the The Company covenants and agrees as follows:
(a) The In connection with any registration under Section 7.4 hereof, the Company shall use its best efforts to file a registration statement within forty-five the Registration Statement as expeditiously as possible, but in any event no later than thirty (4530) business days of following receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement such Registration Statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result holder of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs costs, fees and expenses (excluding other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the Underwriter's and holders of the other Holders' counsel and any underwriting or selling commissions), fees and expenses Registrable Securities) in connection with all registration statements Registration Statements filed pursuant to Sections 7.1 7.3. and 7.2 7.4.(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement the Registration Statement for offering and sale under the securities or blue sky laws of such states as are reasonably are requested by the Underwriter and the other Holdersholders of such securities, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders any holder of the Registrable Securities to be sold pursuant to any registration statement Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls such Underwriter holder or Holders underwriter or person deemed to be an underwriter within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Underwriters as set forth in Section 5 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Any holder of the Registrable Securities to be sold pursuant to a registration statementRegistration Statement, and their such Holder's successors and assigns, shall severally, and not jointly, indemnify indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such HoldersHolder, or their such Holder's successors or assigns, for specific inclusion in such registration statement Registration Statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders any Holder to exercise their Underwriter's Unit the Warrants or the Underwriter's Warrants held by such Holder prior to the initial filing of any registration statement Registration Statement or the effectiveness thereof.
(g) The Company shall promptly deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration statement in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and permit memoranda and to the Underwriter and the other Holders managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other such Holder of the Registrable Securities or managing underwriter shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 2 contracts
Sources: Warrant Agreement (Interactive Magic Inc /Md/), Warrant Agreement (Interactive Magic Inc /Md/)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 8.1 or 7.2 8.4 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five (45) days of receipt of any demand therefor in accordance with Section 7.1, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable time, time and (i) shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested, and (ii) shall prepare and file such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Act.
(b) The Company shall pay all costs costs, expenses and fees (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 and 7.2 Section 8.1 or 8.4 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.48.2(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and Holder(s), extend the other Holders, be liable for any or all actual damages (which may include damages due to a loss exercise period of profit)the Warrants by such number of days as shall equal the delay caused by the Company's failure.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s); provided that, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 16 of the Act or Section 20(a21(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to except for matters for which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementis indemnified under subsection 8.2(e) hereof.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 16 of the Act or Section 20(a21(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement statement; provided, however, that the obligation of any Holder hereunder shall be limited to an amount equal to the same extent and with proceeds received by such Holder upon the same effect as sale of Registrable Securities sold in the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementoffering covered by such registration.
(f) Nothing contained in this Agreement shall be construed as requiring For a period of ninety (90) days after the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing effectiveness of any registration statement filed pursuant to Section 8.1 or 8.4 hereof, the Company shall not permit any other registration statement (other than (1) a registration statement relating to the securities for which the Company has made available to the Holder(s) of the Registrable Securities piggyback registration rights hereunder and (2) a registration statement filed on Forms S-4 or S-8 or a shelf registration on Form S-3) to be or remain effective during the effectiveness thereofof a registration statement or a shelf registration on Form S-3 filed pursuant to Section 8.1 or 8.4 hereof, without the prior written consent of the Holders of the Registrable Securities representing a majority of such securities.
(g) The Company shall deliver promptly furnish to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(jh) The Company shall promptly notify as soon as practicable after the Underwriter effective date of any registration statement filed pursuant to Section 8.1 or 8.4 hereof, and each Holder in any event within fifteen (15) months thereafter, make "generally available to its security holders" (within the meaning of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered Rule 158 under the Act, upon ) an earnings statement (which need not be audited) complying with Section 11(a) of the Company's discovery that, or upon act and covering a period of at least twelve (12) consecutive months beginning after the happening effective date of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(ki) For purposes of this Agreement, The Company shall deliver promptly to each Holder participating in the term "majority" in reference offering requesting the correspondence and memoranda described below and to the Underwriter managing underwriters, copies of all written correspondence between the Commission and the other Holders of the Underwriter's Unit WarrantsCompany, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants its counsel or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants auditors and Underwriter's Shares that have not been resold all memoranda relating to the public pursuant to Rule 144 under the Act or a registration statement filed discussions with the Commission under or its staff with respect to the Actregistration statement and permit each Holder and underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request.
(j) Nothing contained in this Agreement shall be construed as requiring the Holder(s) to exercise their Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
Appears in 2 contracts
Sources: Warrant Agreement (Aviation Group Inc), Warrant Agreement (Aviation Group Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five sixty (4560) days of receipt of any demand therefor in accordance with Section 7.1, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other whose securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), are included in such registration statement such number of prospectuses as shall reasonably be requested. Notwithstanding the foregoing sentence, the Company shall be entitled to postpone the filing of any registration statement otherwise required to be prepared and filed by it pursuant to this Section 7.4(a) if (i) the Company is under contract or other binding legal obligation for a material acquisition, reorganization or divestiture, or (ii) the Company is publicly committed to a self-tender or exchange offer and the filing of a registration statement would cause a violation of Regulation M under the Securities Exchange Act of 1934. In the event of such postponement, the Company shall be required to file the registration statement pursuant to this Section 7.4(a) upon the earlier of (i) the consummation or termination, as applicable, of the event requiring such postponement or (ii) 90 days after the receipt of the initial demand for such registration.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' Holder(s) counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 and 7.2 hereof including, without limitation, the Company's ’s legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their Unit Shares and Unit Warrants underlying the Representative Units.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Unit Shares and Unit Warrants underlying the Representative Units included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter Holder(s) of Representative’s Unit Purchase Options, Representative Units, Unit Shares and all other Holders of the Registrable Securities Unit Warrants to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 “Exchange Act"”), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Representative contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter Holder(s) of Representative’s Unit Purchase Options, Representative’s Units, Unit Shares and all other Holders of Unit Warrants underlying the Registrable Securities Representative Units to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter Representative has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Representative’s Unit Warrants Purchase Options or the Underwriter's their Unit Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) If the Unit Shares and Unit Warrants underlying the Representative Units are to be sold in an underwritten public offering, the Company shall use its best efforts to furnish to each Holder participating in the offering and to each such underwriter, a signed counterpart, addressed to such underwriter, of (i) an opinion of counsel to the Company dated the date of the closing under the underwriting agreement, and (ii) a “cold comfort” letter dated the date of the closing under the underwriting agreement signed by the independent public accountants who have issued a report on the Company’s financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants’ letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to underwriters in underwritten public offerings of securities.
(h) The Company shall as soon as practicable after the Effective Date of the registration statement, and in any event within 15 months thereafter, have made “generally available to its security holders” (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the Effective Date of the registration statement.
(i) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities each Holder participating in the offering requesting the correspondence and memoranda described below, and the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all Company memoranda (excluding memoranda to and from counsel) relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter each Holder and the other Holders of the Registrable Securities underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("“NASD"”); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other such Holder of the Registrable Securities shall reasonably request.
(hj) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters the managing underwriter(s) selected for such underwriting, if any, which underwriter shall be subject to approval by Holders of a Majority of Representative’s Unit Purchase Options, Representative Units, Unit Shares and Unit Warrants underlying the Representative Units requesting to be included in such underwriting. Such underwriting agreement shall be reasonably satisfactory in form and substance to the Company, the Underwriter each Holder and each other Holder of the Registrable Securitiessuch managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwritersmanaging underwriter(s). If required by the underwriters, the Underwriter and the other The Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities Units Shares and Unit Warrants underlying the Representative’s Units and may, at their option, require that any or all the representations representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, underwriter(s) shall also be made to and for the benefit of the Underwriter and the other such Holders. Such Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters underwriter(s) except as they may relate to the Underwriter and the other Holders of the Registrable Securities and such Holders, their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same except for matters related to disclosures with respect to such registration statement (and the prospectus included therein) andHolders, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is contained or required to be delivered under the Actcontained, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make under the statements therein not misleading in Act and the light of the circumstances under which they were made, rules and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were maderegulations thereunder.
(k) For purposes of this Agreement, the term "majority" “Majority” in reference to the Underwriter and the other Holders of the Underwriter's Representative’s Unit WarrantsPurchase Options, Underwriter's Representative Units, Underwriter's Shares, Underwriter's Warrants or the Common Unit Shares underlying the Underwriter's and Unit Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Common Stock of the Company issuable upon full exercise of all Representative’s Unit Purchase Options, including the Unit Warrants and Underwriter's Shares included in the Representative Units that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 2 contracts
Sources: Representative’s Option Agreement for Units (NGTV), Representative’s Option Agreement for Units (NGTV)
Covenants of the Company With Respect to Registration. In connection with any registration registrations under Section 7.1 or 7.2 Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) calendar days of receipt of any demand therefor pursuant to Section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in accordance with Section 7.1a report on Form 10-K or Form 10-Q, as the case may be. The Company shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all any registration statements statement filed pursuant to Sections 7.1 7(b) and 7.2 7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c3) The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Underwriter's Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders of the Registrable Underwriter's Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended 1934 (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders of the Registrable Underwriter's Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof, provided that such Holders have made arrangements reasonably satisfactory to the Company to pay the exercise price from the proceeds of such offering.
(g7) The Company shall furnish to each underwriter for the offering, if any, such documents as such underwriter may reasonably require.
(8) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(9) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter each Holder and the other Holders of the Registrable Securities underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other such Holder of the Registrable Securities shall reasonably request.
(h10) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters the managing underwriter selected for such underwriting by Holders holding a Majority of the Underwriter's Securities requested to be included in such underwriting, provided, however that such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter or underwriters. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter a Majority of such Holders (in respect of a registration under Section 7(b) only) and each other Holder of the Registrable Securitiessuch managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriterstype. If required by the underwriters, the Underwriter and the other The Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Underwriter's Securities. The Underwriter and the other Such Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other such Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 2 contracts
Sources: Underwriter's Warrant Agreement (Room Plus Inc), Underwriter's Warrant Agreement (Room Plus Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The In connection with any registration under Section 7.3 hereof, the Company shall use its best efforts to file a registration statement within forty-five as expeditiously as possible, but in any event, except as otherwise provided in Section 7.3(b), no later than sixty (4560) days of following receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, shall maintain the effectiveness thereof for at least twelve (12) months (or such longer period as may be required by paragraph (g) below), and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b) The Except as otherwise specifically provided in Section 7.4(h)(v) hereof, the Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 and 7.2 hereof Section 7 hereof, including, without limitation, the Company's legal and accounting fees, printing expenses, and expenses as well as "blue sky sky" fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or "blue sky sky" laws of such states as are reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders any Holder of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(e) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders any Holder to exercise their Underwriter's Unit Warrants or the Underwriter's its Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The In connection with any registration statement filed in response to a Demand Registration Request pursuant to Section 7.3 hereof, the Company shall deliver promptly use its reasonable efforts not to permit the Underwriter and all inclusion of any securities outstanding on the date of this Agreement (or issuable upon exercise of warrants outstanding on the date of this Agreement) other Holders of than the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel such demand registration statement or auditors and all memoranda permit any other registration statement relating to discussions with such other securities outstanding on the Commission date of this Agreement (or its staff with respect issuable upon exercise of warrants outstanding on the date of this Agreement), other than (i) on Form S-8 or (ii) securities whose holders are entitled to registration rights as of the date hereof, to become effective during the first six (6) months following the effectiveness of a registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigationfiled under Section 7.3 hereof, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder Holders of the Registrable Securities representing a Majority of such securities (assuming the exercise of all Warrants). In the event the Company is required to include securities outstanding on the date of this Agreement (or issuable upon exercise of warrants outstanding on the date of this Agreement) other than the Registrable Securities in a registration statement filed under Section 7.3 hereof or in a separate registration statement (other than on Form S-8 or with respect to securities whose holders are entitled to registration rights as of the date hereof) within six (6) months after the effectiveness of a registration statement filed pursuant to this Section 7.3, the twelve (12) month period pursuant to Section 7.3(a) shall reasonably requestbe extended for an additional six (6) months.
(h) If required by the underwriters in connection with The Company shall have no obligation pursuant to Section 7.3 hereof to effect an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties in response to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require a Demand Registration Request. In the event that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent shall determine that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any a registration statement filed pursuant to Section 7 hereof, 7.3 hereof shall include an underwritten public offering of the Registrable Securities:
(i) the Company shall furnishfurnish to each underwriter participating in the offering, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriterrepresentative of such underwriters if one has been appointed, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (iA) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated and the date of the closing under the underwriting agreement), agreement and (iiB) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated and the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.; and
(jii) The the Company, as soon as practicable, but in any event not later than forty-five (45) days after the end of the twelve (12) month period beginning on the day after the end of the Company's fiscal quarter during which the effective date of the registration statement occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), shall make generally available to the Holders of the Registrable Securities, in the manner specified in Rule 158(b) of the Rules and Regulations, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the registration statement; and
(iii) the Company shall deliver promptly notify to the Underwriter managing underwriter(s), copies of all correspondence between the Commission and each the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the managing underwriter(s) to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder shall reasonably request; and
(iv) the Company shall enter into an underwriting agreement with the managing underwriter(s) selected for such underwriting by Holders holding a Majority of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required (assuming the exercise of all Warrants) requested to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statementunderwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder participating in the underwritten offering and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as then are customarily contained in effect, includes agreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an untrue statement underwritten sale of a material fact or omits to state any material fact their securities. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution; and
(v) the reasonable out-of-pocket costs incurred by the Company in providing any opinion or "cold comfort" letter pursuant to Section 7.4(h)(i) hereof shall be stated therein or necessary to make the statements therein not misleading borne as follows: (A) in the light event that the underwritten offering includes any securities being sold for the account of the circumstances under which they were made, and upon receipt Company or any securities owned by another security holder of the Company who has not agreed to pay any portion of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holdercosts, the Company shall promptly prepare pay all such costs; (B) in the event that the underwritten offering consists solely of Registrable Securities, the particpating Holders will pay all such costs and furnish (C) in the event that the underwritten offering consists of Registrable Securities and other outstanding securities whose owners have agreed to pay a pro rata portion of such costs, such costs will be shared pro rata among the participating Holders and the holders of the other outstanding securities included in such offering according to the Underwriter or such Holder and each underwriter, if any, a reasonable same ratio as the number of copies of a supplement securities proposed to or an amendment of such prospectus as may be necessary so that, as thereafter delivered registered by each holder bears to the purchasers total ▇▇▇▇▇ of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required securities proposed to be stated therein or necessary to make the statements therein not misleading in the light registered by all of the circumstances under which they were madesecurity holders included in such offering.
(ki) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsMajority", shall mean in excess of fifty percent (50%) of the then then-outstanding Underwriter's Warrants and Underwriter's or Warrant Shares (assuming the exercise of all Warrants) that (i) are not held by the Company, an affiliate, officer, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the ActAct or pursuant to Rule 144(k) of the Act or any comparable exemption from registration.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 hereof, the The Company covenants and agrees as follows:
(a) The 1. In connection with any registration under Section 7.4 hereof, the Company shall use its best efforts to file a registration statement within the Registration Statement as expeditiously as possible, but in no event later than forty-five (45) days of following receipt of any demand therefor in accordance with Section 7.1(unless delayed by the failure of a holder of Registrable Securities to promptly furnish such information necessary to complete such registration statement), shall use its best efforts to have any registration statement such Registration Statement declared effective at the earliest practicable time, possible time and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result holder of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b) 2. The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting or selling commissions)costs, fees and expenses in connection with all registration statements Registration Statements filed pursuant to Sections 7.1 7.3 and 7.2 7.4(a) hereof (excluding any underwriting discounts and commissions which may be incurred in connection with the sale of any Registrable Securities and fees of counsel or any advisor to the Holders of Registrable Securities) including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c) 3. The Company will take all reasonably necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement Registration Statement for offering and sale under the securities or blue sky laws of such states as are reasonably are requested by the Underwriter and the other Holdersholders of such securities, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) 4. The Company shall indemnify the Underwriter and all other Holders any holder of the Registrable Securities to be sold pursuant to any registration statement Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls such Underwriter holder or Holders underwriter or person deemed to be an underwriter within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(e) The Underwriter and all other Holders 5. Any holder of the Registrable Securities to be sold pursuant to a registration statementRegistration Statement, and their its successors and assigns, shall severally, and not jointly, indemnify indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished in writing by or on behalf of such Holdersholder, or their its successors or assigns, for specific inclusion in such registration statement Registration Statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(f) 6. Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders any Holder to exercise their Underwriter's Unit Warrants or the Underwriter's his Warrants prior to the initial filing of any registration statement Registration Statement or the effectiveness thereof.
(g) 7. The Company shall deliver promptly to the Underwriter and all other Holders each holder of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement Registration Statement and permit the Underwriter and the other Holders each holder of the Registrable Securities and underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder such holder of the Registrable Securities or underwriter shall reasonably request.
(h) 8. If required by the underwriters underwriter in connection with an underwritten offering which includes Registrable Securities pursuant to this Section Article 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting , such agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwritersunderwriter, the Underwriter and the other Holders holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders such holders of the Registrable Securities. The Underwriter and the other Holders Such holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders such holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within fortyninety-five (4595) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested. Best efforts shall include the reasonable efforts to insure the availability of financial statements and other matters necessary to effectuate the filing.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' Holder(s) counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profitprofit sustained by the Holder(s) requesting registration of their Warrant Securities. Notwithstanding anything herein to the contrary, provided the Company complies with the provisions of Section 7.3(c), the Company shall have no liability under the foregoing sentence of this Section 7.4(b).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Placement Agent contained in Section 5 10 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Sales Agency Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 10 of the Underwriting Sales Agency Agreement pursuant to which the Underwriter Placement Agent has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly use its best efforts not to permit the Underwriter inclusion of any securities other than the Warrants and all other Holders of the Registrable Warrant Securities participating to be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 7.3 hereof or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws be or rules remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof (except ------- registration statements on Form S-8 or filed pursuant to contractual commitments existing on the National Association of Securities Dealersdate hereof), Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Warrants and Warrant Securities representing a majority of such securities. In the event the Company with its officers is required to include securities other than the Warrants and independent auditorsWarrant Securities in a registration statement filed under Section 7.3, all the Holders shall be entitled to such reasonable extent one additional right to demand the preparation and at such reasonable times and as often as the Underwriter and any other Holder filing of the Registrable Securities shall reasonably request.a registration under Section 7.3
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and furnish to each broker-dealer participating as an underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company as soon as practicable, but in any event not later than 45 days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Placement Agent, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading participating in the light of offering requesting the circumstances under which they were made, correspondence and upon receipt of such notice memoranda described below and the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwritermanaging underwriters, if any, a reasonable number of copies of a supplement all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or an amendment of such prospectus as may be necessary so that, as thereafter delivered its staff with respect to the purchasers of registration statement and permit each Holder and underwriter to do such securitiesinvestigation, such prospectus shall not include an untrue upon reasonable advance notice, with respect to information contained in or omitted from the registration statement of a material fact or omit to state a material fact required to be stated therein or as it deems reasonably necessary to make the statements therein not misleading in the light comply with applicable securities laws or rules of the circumstances under which they were madeNational Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(1) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of the ir respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Placement Agent's Common Stock Warrant Agreement (Medcross Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 Sections 7.2 or 7.2 7.3 hereof, and except as otherwise provided in this Agreement, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Warrant Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' Holder(s) counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The participating Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c). If the Company shall fail to comply with the provisions of its obligations under Section 7.47.4(a), the Company shall, in addition Underwriter and the Holder(s) shall be entitled to any other seek equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit)available.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify and hold harmless the Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders Holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), from and against any and all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their its successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such HoldersHolder(s), or their its successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's its Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Shares to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 7.3 hereof, or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws be or rules remain effective during the effectiveness of the National Association of Securities Dealersa registration statement filed pursuant to Section 7.3 hereof, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holder(s) of the Company with its officers Warrants and independent auditors, all to Shares representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestsecurities.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement stateme6t (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11 (a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or the rules and regulations of the Registrable Securities covered NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request.
(k) In connection with an underwritten offering pursuant to Section 7.3, the Company shall enter into an underwriting agreement with the managing underwriter(s) selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting, which may be the Underwriter. Such agreement shall be reasonably satisfactory in form and substance to the Company, each Holder and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriter(s) shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriter(s) except as they may relate to such Holders and their intended methods of distribution.
(l) In addition to the Warrant Shares, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Actincluding, upon the Company's discovery thatwithout limitation, or upon the happening restricted shares of any event as a result of whichCommon Stock, the prospectus included in such registration statementoptions, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter warrants or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madeother securities convertible into Common Stock.
(km) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Shares, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's or Warrant Shares that (i) are not held by the Company, an affiliate, officer, director, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Underwriter's Warrant Agreement (Ronnybrook Farm Dairy Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 9.2 or 7.2 9.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five ninety (4590) days of receipt of any demand therefor in accordance with Section 7.1therefore, shall use its best efforts and to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Warrant Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested. The Company shall also file such applications and other documents as may be necessary to permit the sale of the Warrant Shares to the public during the Registration Period in those states to which the Company and the holders of the Warrants and/or Warrant Shares shall mutually agree.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 9.2 and 7.2 9.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply The Holder(s) will pay all costs, fees and expenses in connection with the provisions of registration statement filed pursuant to Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit9.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders Holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and statement.
(e) In order to provide for just and equitable contribution as set forth under the Act in Section 6 any case in which (i) any Holder of the Underwriting Warrant Shares or controlling person thereof makes a claim for indemnification but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that the express provisions of Section 9.4(d) hereof provide for indemnification in such case or (ii) contribution under the Act may be required on the part of any Holder of the Warrant Shares, or controlling person thereof, then the Company, any such Holder of the Warrant Shares, or controlling person thereof shall contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (which shall, for all purposes of this Agreement, include, but not be limited to, all costs of defense and investigation and all attorneys fees), in either such case (after contribution from others) on the basis of relative fault as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or a Holder of Warrant Shares, or controlling person thereof on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and such Holders of such securities and such controlling persons agree that it would not be just and equitable if contribution pursuant to this Section 9.4(e) were determined by pro rata allocation or by any other method which does not take account of the equitable considerations referred to in this Section 9.4(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 9.4(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(ef) The Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all any loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished in writing, by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementstatement.
(fg) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(gh) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Shares to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 9.3 hereof, or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary (other than a registration statement on Form S-4 or S-8) to comply with applicable securities laws be or rules remain effective during a one hundred and eighty (180) day period following the effective date of the National Association of Securities Dealersa registration statement filed pursuant to Section 9.3 hereof, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holder(s) of the Company with its officers Warrants and independent auditors, all to Warrant Shares representing a Majority of such reasonable extent and at such reasonable times and securities or as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If otherwise required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance terms of any existing registration rights granted prior to the Company, the Underwriter and each other Holder date of the Registrable Securities, and shall contain such representations, warranties and covenants this Agreement by the Company and such other terms as are customarily contained in agreements to the holders of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders any of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distributionCompany's securities.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the The Company shall furnish, or cause furnish to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a "cold comfort" letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify as soon as practicable after the Underwriter and each Holder effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes ) an untrue earnings statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (which need not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.be
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If The Holder(s) whose Warrant Securities are the Company shall fail subject of such registration statement will pay all costs, fees and expenses in connection with any registration statement filed pursuant to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit7.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 7.3 hereof, or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws be or rules remain effective during the effectiveness of the National Association of Securities Dealersa registration statement filed pursuant to Section 7.3 hereof, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditors, all to Warrant Securities representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestsecurities.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities covered requested to be included in such underwriting, which may be the Representative. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriter(s) shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriter(s) except as they may relate to such Holders and their intended methods of distribution.
(l) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Actincluding without limitation restricted shares of Common Stock, upon the Company's discovery thatoptions, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter warrants or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number other securities convertible into shares of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madeCommon Stock.
(km) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Representative's Warrant Agreement (Omega Orthodontics Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five sixty (4560) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any and all incidental or all actual special damages (which may include damages due to a loss sustained by the Holder(s) requesting registration of profit)its or their Warrants and/or Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained The Company shall not permit the inclusion of any Securities other than the Warrant Securities to be included in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement filed pursuant to Section 7.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness thereofof a registration statement filed pursuant to Section 7.3 hereof, without the prior written consent of the Holders of the Warrants and Warrant Securities representing a Majority of such Securities.
(g) The Company shall deliver promptly furnish to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have have
issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securitiesSecurities.
(h) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(i) The Company shall deliver promptly to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request.
(j) The Company shall promptly notify enter into an underwriting agreement with the Underwriter and each Holder managing underwriters selected for such underwriting by Holders holding a Majority of the Registrable Warrant Securities covered by such registration statement, at any time when a prospectus relating thereto is required requested to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statementunderwriting, which may be the Representative. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as then are customarily contained in effectagreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, includes an untrue statement at their option, require that any or all of a material fact the representations, warranties and covenants of the Company to or omits for the benefit of such underwriter(s) shall also be made to state any material fact and for the benefit of such Holders. Such Holders shall not be required to be stated therein make any representations or necessary warranties to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, agreements with the Company shall promptly prepare or the underwriter(s) except as they may relate to such Holders and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number their intended methods of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madedistribution.
(k) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Representative's Warrant Agreement (Cluckcorp International Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 (8) or 7.2 (9) hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 8 and 7.2 9(a), hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4(10)(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and Holder(s), extend the other Holders, be liable for any or all actual damages (which may include damages due to a loss Exercise Period by such number of profit)days as shall equal the delay caused by the Company's failure.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale resale under the securities or blue sky laws of such states as are reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold resold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), from and against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 7 of the Underwriting Agreement and relating to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementoffering.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold resold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to The Holder(s) may exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section (9) hereof, or permit any other registration statement to be or remain effective during the Underwriter and all effectiveness of a registration statement filed pursuant to Section (9) hereof, other Holders than a secondary offering of the Registrable Securities participating in the offering copies equity securities of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditors, all to Warrant Securities representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestsecurities.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (ix) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (iiy) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(ji) The Company shall promptly notify as soon as practicable after the Underwriter and each Holder effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Act, upon ) an earnings statement (which need not be audited) complying with Section 11(a) of the Company's discovery that, or upon Act and covering a period of at least 12 consecutive months beginning after the happening effective date of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any and all incidental or all actual special damages (which may include damages due to a loss sustained by the Holder(s) requesting registration of profit)its or their Warrants and/or Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 7.3 hereof, or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws be or rules remain effective during the effectiveness of the National Association of Securities Dealersa registration statement filed pursuant to Section 7.3 hereof, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditors, all to Warrant Securities representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestsecurities.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities covered requested to be included in such underwriting, which may be the Representative. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriter(s) shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriter(s) except as they may relate to such Holders and their intended methods of distribution.
(l) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Actincluding without limitation restricted shares of Common Stock, upon the Company's discovery thatoptions, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter warrants or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number other securities convertible into shares of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madeCommon Stock.
(km) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Representative's Warrant Agreement (Multimedia Access Corp)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five (45) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares Units underlying the UnderwriterRepresentative's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities")Purchase Options, such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' Holder(s) counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c). If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their securities hereunder.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Units (inclusive of the shares of Preferred Stock, the Preferred Warrants and the shares of Preferred Stock underlying the Preferred Warrants) underlying the Representative's Purchase Options included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities Units underlying same to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Representative contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Securities Units underlying the Representative's Purchase Options to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.their
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their UnderwriterRepresentative's Unit Warrants or the Underwriter's Warrants Purchase Options prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Units underlying the Representative's Purchase Options to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 7.3 hereof, or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws be or rules remain effective during the effectiveness of the National Association of Securities Dealersa registration statement filed pursuant to Section 7.3 hereof, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Representative's Purchase Options and independent auditors, all to Units underlying same representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestsecurities.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, have made "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below, and the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable National Association of Securities covered by such registration statementDealers, at any time when a prospectus relating thereto is required Inc. ("NASD"). Such investigation shall include access to be delivered under books, records and properties and opportunities to discuss the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light business of the circumstances under which they were madeCompany with its officers and independent auditors, all to such reasonable extent and upon receipt of at such notice the Underwriter reasonable times and each as often as any such Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madereasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Units underlying same requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Units underlying same and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders, their intended methods of distribution, and except for matters related to disclosures with respect to such Holders, contained or required to be contained, in such registration statement under the Act and the rules and regulations thereunder.
(1) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the UnderwriterRepresentative's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsPurchase Options, shall mean in excess of fifty percent (50%) of the then outstanding UnderwriterRepresentative's Warrants and Underwriter's Shares Purchase Options assuming full exercise thereof that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their families, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Representative's Purchase Option Agreement (Kids Stuff Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 Sections 9.2 or 7.2 9.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five one hundred and twenty (45120) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts and to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Warrant Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's a single counsel for all Holders up to a maximum of $25,000 of legal fees and the other Holders' counsel costs and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 9.2 and 7.2 9.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If The Holder(s) will pay all costs, fees and expenses (including those of the Company shall fail to comply Company) in connection with the provisions of registration statement filed pursuant to Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit9.3(c).
(c) The Company will use its commercially reasonable efforts to take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.may
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their UnderwriterRepresentative's Unit Warrants or the Underwriter's Warrants Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and not permit the Underwriter and inclusion of any securities other than the other Holders of the Registrable Securities Warrant Shares to do such investigation, upon reasonable advance notice, with respect to information contained be included in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 9.3 hereof, or permit any other registration statement (other than a registration statement on Form S-4 or S-8) to be or remain effective during a ninety (90) day period following the effectiveness of a registration statement filed pursuant to Section 9.3 hereof, without the prior written consent of National Securities Corporation or as otherwise required by the terms of any existing registration rights granted prior to the date of this Agreement by the Company shall furnish, or cause to be furnished, to the Underwriter and holders of any of the Company's securities.
(h) The Company shall furnish to each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated an
(i) The Company shall as soon as practicable after the effective date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, and in each case covering substantially any event within 15 months thereafter, make "generally available to its security holders" (within the same matters with respect to such registration meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the effective date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securitiesthe registration statement.
(j) The Company shall promptly notify enter into an underwriting agreement with the Underwriter and each Holder managing underwriters selected for such underwriting by Holders holding a Majority of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required Warrant Shares requested to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statementunderwriting, as then which may be the Representative. Such agreement shall be satisfactory in effectform and substance to the Company, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madeeach Holder and such managing underwriters, and upon receipt shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of such notice that type used by the Underwriter and each Holder managing underwriter. The Holders shall not effect be parties to any underwriting agreement relating to an underwritten sale of securities their Warrant Shares and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holdermay, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.at their option,
(k) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, UnderwriterRepresentative's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Shares, shall mean in excess of fifty percent (50%) of the then outstanding UnderwriterRepresentative's Warrants and Underwriter's or Warrant Shares that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Representative's Warrant Agreement (Sonoma International Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 Sections 6.2 or 7.2 6.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five (45) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Warrant Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs ([excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissionscommissions or other charges of any broker-dealer acting on behalf of Holder(s)], fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 Section 6.2 and 7.2 6.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 6.3(c). If the Company shall fail to comply with the provisions of Section 7.46.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual damages (which may include damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a the registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of or process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementsubject.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such a registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementstatement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or of the effectiveness thereof.
(g) The Company shall deliver promptly not permit any securities other than the Warrant Shares to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 6.3 hereof, or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws be or rules remain effective during the effectiveness of the National Association of Securities Dealersa registration statement filed pursuant to Section 6.3 hereof, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers and independent auditors, Warrant Securities representing a Majority of such securities (assuming an exercise of all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestWarrants).
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten an offering including Warrant Shares, pursuant to Sections 6.2 or 6.3 hereof, and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of a registration statement relating to any Warrant Shares pursuant to Section 6.2 or 6.3 hereof, and in any event within fifteen (15) months thereafter, make "generally available to its security holders" (within the meaning of Rule 157 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least twelve (12) consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify to each Holder participating in an offering including any Warrant Shares pursuant to Sections 6.2 or 6.3 hereof, who so requests, and to the Underwriter managing underwriter, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company and its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder shall reasonably request as it deems necessary to comply with applicable securities laws and NASD rules.
(k) With respect to a registration pursuant to Section 6.3 hereof, the Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting. Such managing underwriter(s) shall be satisfactory to the Company and each Holder and such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or all the representations, warranties and covenants of the Registrable Securities covered Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the Underwriters except as they may relate to such Holders and their intended methods of distribution.
(l) In addition to the Warrant Shares, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Actincluding without limitation, upon the Company's discovery thatrestricted shares of Common Stock, or upon the happening of any event as a result of whichoptions, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter warrants or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number other securities convertible into shares of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madeCommon Stock.
(km) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Shares, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's or Warrant Shares that (i) are not held by the Company, an affiliate (excluding the Agent and any affiliate of the Agent), officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In ----------------------------------------------------- connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Consistent with the Registration Rights Agreement, the Company shall use its best efforts to file a registration statement within forty-five ninety (4590) days of receipt of any demand therefor in accordance with Section 7.1request therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Warrant Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested. Notwithstanding the foregoing, the Company shall be entitled to postpone, for a period of not more than ninety (90) days after receipt of a request to effect a registration, the filing of any registration statement otherwise required to be prepared and filed by it pursuant to Section 7.3 hereof if, at any time it receives a request for registration, the Board of Directors of the Company determines in its reasonable business judgment that such registration and offering would interfere with any material financing, acquisition, corporate reorganization or other material transaction or development involving the Company and promptly gives the Holders demanding registration written notice of such determination; provided that (i) upon such postponement by the Company, the Company shall be -------- required to file such registration statement as soon as practicable after the Board of Directors of the Company shall determine, in its reasonable business judgment, that such registration and offering will not interfere with the aforesaid material financing, acquisition, corporate reorganization or other material transaction or development involving the Company, (ii) the Company may utilize this right once each year; (iii) the Holders who made such written request to effect such registration, may, at any time in writing, withdraw such request for such registration and therefore preserve the right provided in Section 7.3 hereof for such Holders to again request such registration, and (iv) the Exercise Period shall automatically be extended by an additional one hundred and twenty (120) days.
(b) The Company shall pay all costs (excluding including fees and expenses of one counsel to the Underwriter's and Holder(s) up to a maximum amount of $25,000 in the other Holders' counsel and any case of a Demand Registration or $15,000 in the case of a Piggyback Registration, but not underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter Holder(s), extend the Exercise Period by such number of days as shall equal the delay caused by the Company's failure, and the other Holders, be liable for any or all actual damages (which as the Holder(s) may include damages due be entitled to as a loss matter of profit)law.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such a reasonable number of states as reasonably are requested by the Underwriter and the other Holders, Holder(s) shall designate; provided that the -------- Company shall not be obligated to execute qualify to do business in any such jurisdiction or to file any general consent to service of process in any jurisdiction in any action other than one arising out of the offering or to qualify as a foreign corporation to do business under the laws sale of any such jurisdictionthe Warrant Shares.
(d) The Company shall indemnify the Underwriter and all other Holders each Holder of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Representative, in its capacity as an Underwriter, contained in Section 5 8 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementAgreements.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter Representative, in its capacity as an Underwriter, has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders a Holder to exercise their Underwriter's Unit Warrants or the Underwriter's its Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request[Reserved].
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 7.2 hereof, the Company shall furnish, or cause furnish to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within fifteen (15) months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least twelve (12) consecutive months beginning after the effective date of the registration statement.
(j) Subject to reasonable confidentiality and privilege considerations, the Company shall deliver promptly to each Holder participating in the offering requesting the correspondence and memoranda described below, and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting, which may be any of the Underwriters. Such agreement shall be reasonably satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders' ownership of the Warrants and the Warrant Shares and their intended methods of distribution.
(l) [Reserved].
(m) For purposes of this Agreement, the term "Majority," in reference to the Holders of Warrants or Warrant Shares, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Shares that (i) are not held by the Company, an officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
(n) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities Warrants and/or Warrants Shares covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At at the request of the Underwriter or any such Holder, the Company shall Holder promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 hereof6.2, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five (45) days of receipt of any demand therefor in accordance with Section 7.1, shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the UnderwriterHolder's and the other Holders' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 and 7.2 hereof Section 6.2 including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(cb) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Option Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(dc) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities Option Shares to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementstatement.
(e) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(fd) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants Options prior to the initial filing of any registration statement or the effectiveness thereof.
(ge) The Company shall deliver promptly furnish to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriterunderwriters, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes relates to an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(jf) The Company shall promptly notify as soon as practicable after the Underwriter effective date of any registration statement filed pursuant to this Section 6, and each Holder in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered Rule 158 under the Act, upon ) an earnings statement (which need not be audited) complying with Section 11(a) of the Company's discovery that, or upon Act and covering a period of at least 12 consecutive months beginning after the happening effective date of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(kg) For purposes of The Company's obligations under this Agreement, Section shall terminate on the term "majority" in reference to the Underwriter and the other Holders fifth anniversary of the Underwriter's Unit Warrantsdate hereof or, Underwriter's Unitsin respect of any Holder, Underwriter's Shares, Underwriter's Warrants or when the Common Option Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) and other Shares held by such Holder represent less than 1% of the shares of such class then outstanding Underwriter's Warrants issued and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Actoutstanding.
Appears in 1 contract
Sources: Option Agreement (David Amiel)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 hereof, the The Company covenants and agrees as follows:
(a) The In connection with any registration under Section 7.4 hereof, the Company shall use its best efforts to file a registration statement within forty-five the Registration Statement as expeditiously as possible, but in any event no later than twenty (4520) days of following receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement such Registration Statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result holder of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs costs, fees and expenses (excluding other than indemnity fees, discounts and nonaccountable expense allowance applicable to the Registrable Securities and fees and expenses of counsel retained by the Underwriter's and the other Holders' counsel and any underwriting or selling commissions), fees and expenses holders of Registrable Securities) in connection with all registration statements Registration Statements filed pursuant to Sections 7.1 7.3 and 7.2 7.4(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement the Registration Statement, for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, holders of such securities; provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders any holder of the Registrable Securities to be sold pursuant to any registration statement Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls such Underwriter holder or Holders underwriter or person deemed to be an underwriter within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(e) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.amended
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 Sections 7.3 and 7.4 hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five sixty (4560) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.3 and 7.2 7.4 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47.5(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and Holder(s), extend the other Holders, be liable for any or all actual damages (which may include damages due to a loss exercise period of profit)the Representatives' Warrants by such number of days as shall equal the delay caused by the Company's failure.
(c3) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, Holder(s); provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders Holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring For a period of one hundred eighty (180) days after the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing effectiveness of any registration statement filed pursuant to Section 7.4 hereof, the Company shall not permit any other registration statement (other than (1) a registration statement relating to the securities for which the Company has granted demand registration rights, as described in the Prospectus included in the Registration Statement, (2) a registration statement relating to the securities for which the Company has granted piggyback registration rights, as described in the Prospectus included in the Registration Statement and (3) a registration statement filed on Forms S-4 or S-8 to be or remain effective during the effectiveness thereof.
(g) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the a registration statement and permit the Underwriter and the other Holders of the Registrable Securities filed pursuant to do such investigationSection 7.4 hereof, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit representing a Majority of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distributionsecurities.
(i7) In connection with any registration statement filed pursuant to Section 7 hereof, the The Company shall furnish, or cause furnish upon request to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j8) The Company shall as soon as practicable after the effective date of any registration statement filed pursuant to Sections 7.3 and 7.4 hereof, and in any event within 15 months thereafter, make Agenerally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(9) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all written correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable Securities covered by such registration statementNASD. Such investigation shall include access to books, at any time when a prospectus relating thereto is required records and properties and opportunities to be delivered under discuss the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light business of the circumstances under which they were madeCompany with its officers and independent auditors, all to such reasonable extent and upon receipt of at such notice the Underwriter reasonable times and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or as often as any such HolderHolder or underwriter shall reasonably request.
(10) With respect to any registration under Section 7.4 hereof, the Company shall promptly prepare enter into an underwriting agreement with the managing underwriter selected for such underwriting by the Initiating Holders or the Paying Holders, as the case may be. Such agreement shall be satisfactory in form and furnish substance to the Underwriter or such Company, each Holder and each such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, if anyat their option, a reasonable number require that any or all the representations, warranties and covenants of copies of a supplement the Company to or an amendment for the benefit of such prospectus as may underwriters shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement of a material fact or omit to state a material fact be required to be stated therein make any representations or necessary warranties to make or agreements with the statements therein not misleading in Company or the light underwriters, except as they may relate to such Holders and their intended methods of the circumstances under which they were madedistribution.
(k11) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsRegistrable Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Representatives' Warrants and/or Shares of Preferred Stock issued upon exercise of the Representatives' Warrants that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Underwriting Agreement (Awg LTD)
Covenants of the Company With Respect to Registration. In connection with any registration registrations under Section 7.1 or 7.2 Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) calendar days of receipt of any demand therefor pursuant to Section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in accordance with Section 7.1a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Underwriters' Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all any registration statements statement filed pursuant to Sections 7.1 7(b) and 7.2 7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c3) The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Underwriters' Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders of the Registrable Underwriters' Warrant and/or the Underwriters' Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders of the Registrable Underwriters' Warrant and/or the Underwriters' Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants Underwriters' Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(g7) The Company shall furnish to each Underwriter for the offering, if any, such documents as such Underwriter may reasonably require.
(8) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(9) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities each Holder participating in the offering requesting the correspondence described below and any managing Underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the each Holder and Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other such Holder of the Registrable Securities shall reasonably request.
(h10) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters the managing underwriter selected for such underwriting by Holders holding a Majority in interest of the then outstanding Underwriters' Warrant, or the Majority in interest of the Underwriters' Securities (assuming the exercise of all of the Underwriters' Warrant), requested to be included in such underwriting, provided, however that any managing underwriter shall be reasonably acceptable to the Company, except that in connection with a public offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter or underwriters. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders (in respect of a registration under Section 7(b) only), as the Underwriter case may be, and each other Holder of the Registrable Securitiessuch managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriterstype. If required by the underwriters, the Underwriter and the other The Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Underwriters' Warrant and/or Underwriters' Securities. The Underwriter and the other Such Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other such Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Underwriters' Warrant Agreement (Amedore Homes Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 (8) or 7.2 (9) hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 (h), (i) and 7.2 (j) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4(10)(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and Holder(s), extend the other Holders, be liable for any or all actual damages (which may include damages due to a loss Exercise Period by such number of profit)days as shall equal the delay caused by the Company's failure.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale resale under the securities or blue sky laws of such states as are reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold resold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), from and against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 7 of the Underwriting Agreement and relating to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementoffering.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold resold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to The Holder(s) may exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section (9) hereof, or permit any other registration statement to be or remain effective during the Underwriter and all effectiveness of a registration statement filed pursuant to Section (9) hereof, other Holders than a secondary offering of the Registrable Securities participating in the offering copies equity securities of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditors, all to Warrant Securities representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestsecurities.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (ix) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (iiy) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable National Association of Securities covered by such registration statementDealers, at any time when a prospectus relating thereto is required Inc. ("NASD") or an Exchange. Such investigation shall include access to be delivered under books, records and properties and opportunities to discuss the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light business of the circumstances under which they were madeCompany with its officers and independent auditors, all to such reasonable extent and upon receipt of at such notice the Underwriter reasonable times and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or as often as any such Holder, the Company Holder or underwriter shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madereasonably request.
(k) The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(l) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 (8) or 7.2 (9) hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 (h), (i) and 7.2 (j) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4(10)(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and Holder(s), extend the other Holders, be liable for any or all actual damages (which may include damages due to a loss Exercise Period by such number of profit)days as shall equal the delay caused by the Company's failure.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), from and against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 7 of the Underwriting Agreement and relating to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementoffering.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to The Holder(s) may exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and not permit the Underwriter and inclusion of any securities other than the other Holders of the Registrable Warrant Securities to do such investigation, upon reasonable advance notice, with respect to information contained be included in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 (9) hereof, the Company shall furnish, or cause permit any other registration statement to be furnished, to or remain effective during the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, effectiveness of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.pursuant to Section (9) hereof, other than a
Appears in 1 contract
Sources: Warrant Agreement (American Eagle Motorcycle Co Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 hereof, the The Company covenants and agrees as follows:
(a) The In connection with any registration under Section 7.4 hereof, the Company shall use its best efforts to file a registration statement within forty-five the Registration Statement as expeditiously as possible, but in any event no later than sixty (4560) days of following receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement such Registration Statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result holder of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested, provided, however, that the Company may, at any time, delay the filing or delay or suspend the effectiveness of such demand registration or, without suspending such effectiveness, and instruct the Holders not to sell any securities included in such demand registration, (i) if the Company shall have determined upon the written advice of counsel (confirmation of which notice shall be provided to the Holder(s) in writing by such counsel) that the Company would be required to disclose any actions taken or proposed to be taken by the Company in good faith and for valid business reasons, including without limitation, the acquisition or divestiture of assets, which disclosure would have a material adverse effect on the Company or on such actions, or (ii) if required by law, to update the prospectus relating to any such registration to include updated financial statements (a "Suspension Period") by providing the Holder(s) with written notice of such Suspension Period and the reasons therefor; and provided further, that the Suspension Periods, in the aggregate, do not exceed ninety (90) days. The Company shall provide such notice as soon as practicable and in any event prior to the commencement of such Suspension Period.
(b) The Company shall pay all costs costs, fees and expenses (excluding other than underwriting fees, discounts and nonaccountable expense allowance applicable to the Registrable Securities and the fees and expenses of counsel retained by the Underwriter's and the other Holders' counsel and any underwriting or selling commissions), fees and expenses holders of Registrable Securities) in connection with all registration statements Registration Statements filed pursuant to Sections 7.1 7.3 and 7.2 7.4(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement the Registration Statement for offering and sale under the securities or blue sky laws of such states as are reasonably are requested by the Underwriter and the other Holders, holders of such securities; provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders any holder of the Registrable Securities to be sold pursuant to any registration statement Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls such Underwriter holder or Holders underwriter or person deemed to be an underwriter within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter as set forth in Section 5 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Any holder of the Registrable Securities to be sold pursuant to a registration statement, and their such Holder's successors and assigns, shall severally, and not jointly, indemnify indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holdersholder, or their such Holder's successors or assigns, for specific inclusion in such registration statement Registration Statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders any Holder to exercise their Underwriter's Unit the Warrants or the Underwriter's Warrants held by such Holder prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall promptly deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each holder of Registrable Securities included for such registration statement in such Registration Statement pursuant to Section 7.3 hereof or Section 7.4 hereof requesting such correspondence and permit memoranda and to the Underwriter and the other Holders managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each holder of Registrable Securities and such underwriter to do such reasonable investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder such holder of the Registrable Securities or underwriter shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Warrant Agreement (Network 1 Security Solutions Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) (excluding the costs attendant to a second demand registration) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 7.3 hereof, or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws be or rules remain effective during the effectiveness of the National Association of Securities Dealersa registration statement filed pursuant to Section 7.3 hereof (other than (i) shelf registrations effective prior thereto and (ii) registrations on Form S-4 or S-8), Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditors, all to Warrant Securities representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestsecurities.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable Securities covered by such registration statementNASD. Such investigation shall include access to books, at any time when a prospectus relating thereto is required records and properties and opportunities to be delivered under discuss the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light business of the circumstances under which they were madeCompany with its officers and independent auditors, all to such reasonable extent and upon receipt of at such notice the Underwriter reasonable times and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or as often as any such Holder, the Company Holder or underwriter shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madereasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities requested pursuant to Section 7.3(a) to be included in such underwriting, which may be Millennium. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities whether pursuant to Section 7.2 or Section 7.3(a) and may, at their option, require that any or all of the representations, warranties and covenants of each of the Company and the Subsidiary to or for the benefit of such underwriter(s) shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriter(s) except as they may relate to such Holders and their intended methods of distribution.
(l) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Representative's Warrant Agreement (Genesis Media Group Inc /De/)
Covenants of the Company With Respect to Registration. In --------- -- --- ------- ---- ------- -- ------------ connection with any registration under Section 7.1 or 7.2 Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all any registration statements statement filed pursuant to Sections 7.1 7(b) and 7.2 7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47(d)(1), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their Warrant Securities.
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 8 of the Underwriting Agreement Agreement, and the Holder(s) shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the Underwriter has agreed to indemnify the Company contained in Section 6 8 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g7) The Company shall deliver promptly not be entitled to include any securities other than the Underwriter and all other Holders of the Registrable Warrant Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and permit the Underwriter and the other Holders of the Registrable Securities filed pursuant to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information Section 7(b) hereof without the prior written consent of the Company. Such investigation shall include access to books, records Underwriter and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditors, Warrant Securities representing a Majority of such securities (assuming exercise of all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestWarrants).
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the 8) The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, and if such registration includes an underwritten public offering, an opinion dated the date of the closing Closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing Closing under the underwriting agreement), ) signed by the independent public accountants accounts who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letter, with respects to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j9) The Company shall promptly notify as soon as practicable 11 after the Underwriter and each Holder effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly to each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Company's discovery thatregistration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, or upon Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportSecurityies to discuss the happening business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any event as such Holder shall reasonably request.
(11) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a result Majority of which, the prospectus Warrant Securities requested to be included in such registration statementunderwriting, as then except that in effect, includes connection with an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make offering for which the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such HolderHolders have piggyback rights, the Company shall promptly prepare have the sole right to select the managing underwriter. Such underwriting agreement shall be satisfactory in form and furnish substance to the Underwriter or such Holder and each underwriter, if anyCompany, a reasonable number Majority of copies such Holders and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of a supplement that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or an amendment for the benefit of such prospectus as may underwriters shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement of a material fact or omit to state a material fact be required to be stated therein make any representations or necessary warranties to make or agreements with the statements therein not misleading in Company or the light underwriters except as they may relate to such Holders and their intended methods of the circumstances under which they were madedistribution.
(k12) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction there with, or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration registrations under Section 7.1 or 7.2 Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five (45) calendar days of receipt of any demand therefor pursuant to Section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in accordance with Section 7.1a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Underwriters' Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all the first registration statements statement filed pursuant to Sections 7.1 7(b) and 7.2 7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c3) The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Underwriters' Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders of the Registrable Underwriters' Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders of the Registrable Underwriters' Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Underwriters' Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Underwriters' Securities in any registration statement filed pursuant to Section 7(b) hereof without the prior written consent, which consent shall not be unreasonably withheld, of the Holders of the Underwriters' Warrants and Underwriters' Securities representing a Majority of such securities (assuming exercise of all of the Underwriters' Warrants).
(8) The Company shall furnish to a designated representative of the Holders participating in the offering and to each underwriter, if any, a signed counterpart, addressed to the Company or the underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) if such registration includes an underwritten public offering a copy of the "cold comfort" letter dated the effective date of such registration statement signed by each independent public accountant who has issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letters. with respect to events subsequent to the date of such financial statements, as are duly covered in opinions of issuer's counsel and in accountants' letters, with respect to customary events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 1 (a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter each Holder and the other Holders of the Registrable Securities underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other such Holder of the Registrable Securities shall reasonably request.
(h11) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters the managing underwriter selected for such underwriting by Holders holding a Majority of the Underwriters' Securities requested to be included in such underwriting, provided, however that (i) such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter or underwriters, and (ii) the Holders shall be responsible for any selling fees or commissions in connection with such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter a Majority of such Holders (in respect of a registration under Section 7(b) only) and each other Holder of the Registrable Securitiessuch managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwritersmanaging underwriter. If required by the underwriters, the Underwriter and the other The Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Underwriters' Securities and may, at their option, require that any or all the representations representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, shall also be made to and for the benefit of the Underwriter and the other such Holders. Such Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other such Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Underwriters' Warrant Agreement (Phoenix Preschool Holdings Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five sixty (4560) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit7.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(e) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting, which underwriters to be approved by the Company. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter each Holder and each other Holder of the Registrable Securitiessuch managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwritersmanaging underwriter(s). If required by the underwriters, the Underwriter and the other The Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Warrant Securities and may, at their option, require that any or all the representations representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, underwriter(s) shall also be made to and for the benefit of the Underwriter and the other such Holders. Such Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters underwriter(s) except as they may relate to the Underwriter and the other such Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(ke) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Warrant Agreement (Emerging Growth Acquisition Corp I)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five (45) 45 days of receipt of any demand therefor in accordance connection with any registration under Section 7.17.3, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, expenses and blue sky fees and expenses. The Holder(s) shall pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c) hereof. If the Company shall fail to comply with the provisions of its obligations under Section 7.47.4(a), the Company shall, in addition Holder(s) shall be entitled to any other seek equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profitHolder(s).
(c) The Company will shall take all necessary action which that may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify and hold harmless the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders Holder(s) within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), from and against any and all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoeverwhatsoever including, without limitation, the fees and expenses of legal counsel) to which any of them may become subject under the Securities Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions contained in Section 7(a) of the Underwriting Agreement pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 each of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementUnderwriters.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, Company and its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the 1934 Exchange Act, from and against any and all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoeverwhatsoever including, without limitation, the fees and expenses of legal counsel) to which they may become subject under the Securities Act, the 1934 Exchange Act or otherwise, arising from information furnished in writing by or on behalf of such Holders, Holders or their successors or assigns, specifically for specific inclusion in such registration statement statement, but only to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth contained in Section 6 7(b) of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Representatives' Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section 7.3 hereof or permit any other registration statement to be or remain effective during the Underwriter and all other Holders effectiveness of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities filed pursuant to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information Section 7.3 hereof without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Representatives' Warrants and independent auditors, all to the other Warrant Securities representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestsecurities.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, furnished to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, or if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Securities Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Securities Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or the rules and regulations of the Registrable National Association of Securities covered Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request.
(k) With respect to a registration under Section 7.3 hereto the Company shall enter into an underwriting agreement with the underwriters selected for such underwriting by the Holders of a Majority of the Warrant Securities requesting such registration statementregistration, which may be the Representatives. Such agreement shall be reasonably satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms and conditions as are customarily contained in agreements of the type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any time when a prospectus relating thereto is or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to be delivered under make any representations or warranties to or agreements with the ActCompany or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(l) In addition to the Warrant Securities, upon the Company's discovery that, or upon the happening of written request therefor by any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such HolderHolder(s), the Company shall promptly prepare and furnish to include in the Underwriter registration statement any other securities of the Company held by such Holder(s) or issuable upon conversion or exercise or in exchange for securities held by such Holder and each underwriter, if any, a reasonable number Holder(s) as of copies the date of a supplement to or an amendment filing of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were maderegistration statement.
(km) For purposes of this Agreement, the term "majorityMajority" or "66-2/3%" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Representatives' Warrants or the Common Shares underlying the Underwriter's Warrantsand/or other Warrant Securities, shall mean in excess of fifty percent (50%) , in the former case, and 66-2/3%, in the latter case, of the shares of Common Stock issued or issuable upon exercise of all then outstanding Underwriter's Representatives' Warrants and/or Warrant Securities (assuming the exercise of all of the Representatives' Warrants) that (i) are not held by the Company, an affiliate, officer, creditor, employee, or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith, and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Actpublic.
Appears in 1 contract
Sources: Representative's Warrant Agreement (Apollo Biopharmaceutics Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 5.2 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five (45) days 24 months of receipt the date of any demand therefor in accordance with Section 7.1, shall use its best efforts issuance of this Warrant to have any a registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses to the holders as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting or selling commissions)costs, fees and expenses in connection with all registration statements filed pursuant to under Sections 7.1 and 7.2 5.2 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, expenses and blue sky fees and expenses. If , except that the Company shall fail to comply with not pay for (i) underwriting discounts and commissions, (ii) state transfer taxes, (iii) brokerage commissions and (iv) fees and expenses of counsel and accountants for the provisions holders of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit)Warrants and/or Warrant Shares.
(c) The Company company will take all necessary action which that may be required in qualifying seeking to register or registering qualify the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably are requested by the Underwriter and holders of the other HoldersWarrant Shares, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company company shall indemnify the Underwriter and all other Holders holders of the Registrable Securities to be sold pursuant to Warrant Shares included in any registration statement and each person, if any, who controls any such Underwriter or Holders Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from out of or based upon any untrue statement or alleged untrue statement of a material fact in such registration statement or any related prospectus, offering circular, notification or other document furnished or authorized by the Company, or any omission or alleged omission of any material fact required to be stated therein or necessary to make the statements therein not misleading, unless such actual or alleged statement or omission was made in reliance upon an in conformity with information furnished in writing to the same extent and Company by or on behalf of any Holder specifically for use in connection with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 preparation of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementsuch registration statement, prospectus, offering circular, notification or other document.
(e) The Underwriter and all other Holders Each Holder of the Registrable Securities to be sold pursuant to a Warrants and/or Warrant Shares for whose benefit shares are included in any registration statementstatement shall indemnify such other holders, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls any such other Holder or the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by out of or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of based upon any registration untrue statement or the effectiveness thereof.
(g) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an alleged untrue statement of a material fact in such registration statement or omits to state any related prospectus, offering circular, notification or other document furnished or authorized by the Company, or any omission or alleged omission of any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, but only if such actual or alleged statement or omission was made in the light of the circumstances under which they were made, reliance upon and upon receipt in conformity with information furnished by or on behalf of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing for specific inclusion in such registration statement, prospectus, offering circular, notification or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madeother document.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five (45) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares Units underlying the UnderwriterRepresentative's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities")Purchase Options, such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' Holder(s) counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c). If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their securities hereunder.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Units (inclusive of the shares of Preferred Stock, the Preferred Warrants and the shares of Preferred Stock underlying the Preferred Warrants) underlying the Representative's Purchase Options included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities Units underlying same to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Representative contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Securities Units underlying the Representative's Purchase Options to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter Representative has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their UnderwriterRepresentative's Unit Warrants or the Underwriter's Warrants Purchase Options prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Units underlying the Representative's Purchase Options to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 7.3 hereof, or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws be or rules remain effective during the effectiveness of the National Association of Securities Dealersa registration statement filed pursuant to Section 7.3 hereof, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Representative's Purchase Options and independent auditors, all to Units underlying same representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestsecurities.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, have made "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below, and the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable National Association of Securities covered by such registration statementDealers, at any time when a prospectus relating thereto is required Inc. ("NASD"). Such investigation shall include access to be delivered under books, records and properties and opportunities to discuss the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light business of the circumstances under which they were madeCompany with its officers and independent auditors, all to such reasonable extent and upon receipt of at such notice the Underwriter reasonable times and each as often as any such Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madereasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Units underlying same requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Units underlying same and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders, their intended methods of distribution, and except for matters related to disclosures with respect to such Holders, contained or required to be contained, in such registration statement under the Act and the rules and regulations thereunder.
(l) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the UnderwriterRepresentative's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsPurchase Options, shall mean in excess of fifty percent (50%) of the then outstanding UnderwriterRepresentative's Warrants and Underwriter's Shares Purchase Options assuming full exercise thereof that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their families, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Representative's Purchase Option Agreement (Kids Stuff Inc)
Covenants of the Company With Respect to Registration. In ----------------------------------------------------- connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within fortyninety-five (45) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested. Best efforts shall include the reasonable efforts to insure the availability of financial statements and other matters necessary to effectuate the filing.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' Holder(S) counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's 'S legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(S), be liable for any or and all actual incidental, special and consequential damages (which may include and damages due to a loss of profitprofit sustained by the Holder(S) requesting registration of their Warrant Securities. Notwithstanding anything herein to the contrary, provided the Company complies with the provisions of Section 7.3(c), the Company shall have no liability under the foregoing sentence of this Section 7.4(b).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(S), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(S) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementstatement.
(e) The Underwriter and all other Holders Holder(S) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementstatement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(S) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly use its best efforts not to permit the Underwriter inclusion of any securities other than the Warrants and all other Holders of the Registrable Warrant Securities participating to be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 7.3 hereof or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws be or rules remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof (except registration statements on Form S-8 or filed pursuant to contractual commitments existing on the National Association of Securities Dealersdate hereof), Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Warrants and Warrant Securities representing a majority of such securities. In the event the Company with its officers is required to include securities other than the Warrants and independent auditorsWarrant Securities in a registration statement filed under Section 7.3, all the Holders shall be entitled to such reasonable extent one additional right to demand the preparation and at such reasonable times and as often as the Underwriter and any other Holder filing of the Registrable Securities shall reasonably requesta registration under Section 7.3.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and furnish to each broker-dealer participating as an underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder broker-dealer or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's 'S financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's 'S counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company, as soon as practicable, but in any event not later than forty-five days after the end of the twelve-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety days in the event that the end of such fiscal quarter is the end of the Company'S fiscal year), shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations of the Commission, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations of the Commission, which statement need not be audited unless required by the Act, covering a period of at least twelve consecutive months after the effective date of the Registration Statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading participating in the light of the circumstances under which they were made, offering and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwritermanaging underwriters, if any, a reasonable number of copies of a supplement all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or an amendment of such prospectus as may be necessary so that, as thereafter delivered its staff with respect to the purchasers of registration statement and permit each Holder and underwriter to do such securitiesinvestigation, such prospectus shall not include an untrue upon reasonable advance notice, with respect to information contained in or omitted from the registration statement of a material fact or omit to state a material fact required to be stated therein or as it deems reasonably necessary to make the statements therein not misleading in the light comply with applicable securities laws or rules of the circumstances under which they were madeNASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(1) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean Holders who hold in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants or Warrant Securities that (i) are not held by the Company, an affiliate (other than a Holder), officer, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Warrant Agreement (Medcross Inc)
Covenants of the Company With Respect to Registration. In connection with any registration of Registrable Securities under Section 7.1 or 7.2 2 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five (45) days of receipt of any demand therefor in accordance with Section 7.1, shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested.
(b) 2.4.1 The Company shall pay all costs (including the costs of a single firm of counsel designated by the Selling Holders to review the registration statement and all amendments and supplements thereto up to a maximum of $25,000 in respect of each registration under Section 2 hereof, but excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting or selling commissionscommissions or other charges of any Underwriter or broker-dealer acting on behalf of the Selling Holders), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 and 7.2 hereof Section 2 hereof, including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Selling Holders; provided, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction. If the Selling Holders have sent a Demand Notice and have determined not to sell any Registrable Securities pursuant to a registered offering, the Selling Holders may elect to reimburse the Company for any costs incurred solely with respect to such registration statement or lose the demand registration rights.
(d) 2.4.2 The Company shall indemnify the Underwriter each Selling Holder, its trustees and all other Holders of the Registrable Securities to be sold pursuant to any registration statement officers, and each person, if any, who controls such Underwriter or Holders Selling Holder within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934Act, as amended (the "1934 Act")from and against, against and pay or reimburse them for, all losslosses, claimclaims, damagedamages, expense or liability expenses and liabilities (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the 1934 Exchange Act or otherwise, arising from out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(e) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assignsincluding any preliminary prospectus or final prospectus contained therein or any supplement to or amendments thereof, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make a statement therein not misleading, except insofar as such losses, claims, damages, expenses or liabilities arise out of or are based upon any such untrue statement or omission or allegation thereof based upon information furnished in writing to the Company by or on behalf of a Selling Holder expressly for use therein. Each Selling Holder shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the 1934 Exchange Act, against from and against, and pay or reimburse them for, all losslosses, claimclaims, damage or expense or liability damages, expenses and liabilities (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they any of them may become subject under the Securities Act, the 1934 Exchange Act or otherwise, directly arising from written information furnished by or on behalf of such Holders, or their successors or assigns, Selling Holder for specific inclusion in such registration statement.
2.4.3 The Company shall not permit any other registration statement to be filed during the same extent and with the same effect as the provisions contained in Section 5 first 60 days of the Underwriting Agreement effectiveness of a registration statement filed pursuant to which the Underwriter has agreed Section 2 hereof (other than a registration statement in connection with a merger or consolidation or pursuant to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter Form S-8, S-4 or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any comparable registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly a registration filed ▇▇▇▇▇▇▇▇ to any rights granted to the Underwriter and all other Holders Johnston Family Foundation pursuant to the terms of the Registrable Securities participating in the offering copies of all correspondence between the Commission and that certain Subo▇▇▇▇▇▇▇▇ Promissory Note dated October 26, 2001 issued by the Company), its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the CompanyStockholder Representative, which consent shall not be unreasonably withheld, and shall be provided only after a Stockholder Action. Such investigation The Company shall include access to books, records and properties and opportunities to discuss not permit the business inclusion of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any securities other Holder of than the Registrable Securities shall reasonably request.
(h) If required held by the underwriters any Rights Holder to be included in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 Sections 2.1 and 2.3 hereof; provided, however, that the Company may include securities being offered by it for its own account and for the account of stockholders of the Company permitted by the Company to include their securities in such registration statement, to the extent that such inclusion does not in any way reduce the number of securities proposed to be included by Selling Holder.
2.4.4 The Company shall furnish, or use reasonable efforts in good faith to cause to be furnished, furnished to the Underwriter and each Selling Holder participating in any underwritten offering and to each underwriterUnderwriter, if any, a signed counterpart, addressed to the Underwriter, such each Selling Holder or underwritersuch Underwriter, of (ia) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (iib) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) 2.4.5 The Company shall promptly notify as soon as practicable after the Underwriter and each Holder effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Securities Act, upon ) an earnings statement (which may be unaudited) complying with Section 11(a) of the Company's discovery that, or upon Securities Act and covering a period of at least 12 consecutive months beginning after the happening effective date of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the .
2.4.6 The Company shall deliver promptly prepare to each Selling Holder and furnish to the Underwriter or such Holder and each underwritermanaging Underwriter, if any, a reasonable number of copies of all correspondence between the SEC and the Company, its counsel or auditors and permit each Selling Holder and Underwriter at its own cost and expense to do such investigation, upon reasonable advance notice, and upon entering into a supplement to or an amendment of such prospectus as may be necessary so thatconfidentiality agreement, as thereafter delivered in form and substance reasonably acceptable to the purchasers of Company, with each Selling Holder and such securitiesUnderwriter, such prospectus shall not include an untrue with respect to information contained in or omitted from the registration statement of a material fact or omit to state a material fact required to be stated therein or as it deems reasonably necessary to make the statements therein not misleading in the light comply with applicable securities laws or rules of the circumstances under which they were madeNational Association of Securities Dealers, Inc. (the "NASD") or other national exchange. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Lender shall reasonably request as it deems necessary to comply with applicable securities laws or rules of the NASD or other national exchange.
(k) For purposes of 2.4.7 Nothing contained in this Agreement, the term "majority" in reference Agreement shall be construed as requiring any Stockholder to exercise its Option prior to the Underwriter and the other Holders effectiveness of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a any registration statement filed with the Commission under the Actstatement.
Appears in 1 contract
Sources: Registration Rights Agreement (Royal Precision Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 Sections 7.3 and 7.4 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five sixty (4560) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.3 and 7.2 7.4 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47.5(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and Holder(s), extend the other Holders, be liable for any or all actual damages (which may include damages due to a loss exercise period of profit)the Representatives' Warrants by such number of days as shall equal the delay caused by the Company's failure.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, Holder(s); provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring For a period of one hundred eighty (180) days after the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing effectiveness of any registration statement filed pursuant to Section 7.4 hereof, the Company shall not permit any other registration statement (other than (1) a registration statement relating to the securities for which the Company has granted demand registration rights, as described in the Prospectus included in the Registration Statement, (2) a registration statement relating to the securities for which the Company has granted piggyback registration rights, as described in the Prospectus included in the Registration Statement and (3) a registration statement filed on Forms S-4 or S-8 to be or remain effective during the effectiveness thereofof a registration statement filed pursuant to Section 7.4 hereof, without the prior written consent of the Holders of the Registrable Securities representing a Majority of such securities.
(g) The Company shall deliver promptly furnish upon request to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(jh) The Company shall promptly notify as soon as practicable after the Underwriter effective date of any registration statement filed pursuant to Sections 7.3 and each Holder 7.4 hereof, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(i) The Company shall deliver promptly to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all written correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Company's discovery that, or upon the happening of any event registration statement as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or it deems reasonably necessary to make the statements therein not misleading in the light comply with applicable securities laws or rules of the circumstances under which they were madeNASD. Such investigation shall include access to books, records and upon receipt of such notice properties and opportunities to discuss the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request business of the Underwriter or Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such HolderHolder or underwriter shall reasonably
(j) With respect to any registration under Section 7.4 hereof, the Company shall promptly prepare enter into an underwriting agreement with the managing underwriter selected for such underwriting by the Initiating Holders or the Paying Holders, as the case may be. Such agreement shall be satisfactory in form and furnish substance to the Underwriter or such Company, each Holder and each such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, if anyat their option, a reasonable number require that any or all the representations, warranties and covenants of copies of a supplement the Company to or an amendment for the benefit of such prospectus as may underwriters shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement of a material fact or omit to state a material fact be required to be stated therein make any representations or necessary warranties to make or agreements with the statements therein not misleading in Company or the light underwriters, except as they may relate to such Holders and their intended methods of the circumstances under which they were madedistribution.
(k) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsRegistrable Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Representatives' Warrants and/or Shares of Preferred Stock issued upon exercise of the Representatives' Warrants that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Underwriting Agreement (Awg LTD)
Covenants of the Company With Respect to Registration. In connection with any registration registrations under Section 7.1 or 7.2 Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five ninety (4590) days of receipt of any demand therefor therefor; provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in accordance with Section 7.1a report on Form 10-K or Form 10-Q (or Form 10-KSB or Form 10-QSB), as the case may be. The Company shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all any registration statements statement filed pursuant to Sections 7.1 7(b) and 7.2 7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47(d) (1), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their Warrant Shares.
(c3) The Company will take all necessary and reasonable action which may be required in qualifying to qualify or registering register the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the 1933 Act or Section 20(a) of the Securities Exchange Act of 1934, as amended 1934 (the "1934 Exchange Act"), against all losslosses, claimclaims, damagedamages, expense expenses or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the 1933 Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 6 of the Underwriting Agreement Agreement, and the Holder(s) shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the Underwriter has agreed to indemnify the Company contained in Section 6 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each personpersons, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Exchange Act, against all losslosses, claimclaims, damage or expense damages, expenses or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the 1933 Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 6 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g7) The Company shall deliver promptly to If the Underwriter and all other Holders manner of distribution proposed by the holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission Warrants and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with Warrant Shares is an underwritten offering which includes Registrable Securities pursuant to this Section 7underwriting, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, and if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j8) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within the first full four fiscal quarters following the effective date, make "generally available to its security holders" (within the meaning of Rule 158 under the 1933 ▇▇▇) ▇▇ earnings statement (which need not be audited) complying with Section 11(a) of the 1933 ▇▇▇.
(9) The Company shall deliver promptly notify the Underwriter and to one designated representative for each Holder participating in the offering requesting the correspondence described below and any managing underwriter, copies of all correspondence between the Commission and the Company, its counsel or auditors with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable National Association of Securities covered by such registration statementDealers Regulation, at any time when a prospectus relating thereto is required Inc. ("NASDR"). Such investigation shall include access to be delivered under books, records and properties and opportunities to discuss the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light business of the circumstances under which they were madeCompany with its officers and independent auditors, all to such reasonable extent and upon receipt of at such notice the Underwriter reasonable times and each as often as any such Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At reasonably request.
(10) In connection with an offering for which the request of the Underwriter or any such HolderHolders have demand rights, the Company shall promptly prepare enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Shares requested to be included in such underwriting. In connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter. Such underwriting agreement shall be satisfactory in form and furnish substance to the Underwriter or Company, a Majority of such Holder Holders and each such managing underwriter, if anyand shall contain such representations, a reasonable number warranties and covenants by the Company and such other terms as are customarily contained in agreements of copies that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of a supplement their Warrant Shares and may, at their option, require that any or all the representations, warranties and covenants of the Company to or an amendment for the benefit of such prospectus as may underwriter shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement of a material fact or omit to state a material fact be required to be stated therein make any representations or necessary warranties to make or agreements with the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants Company or the Common Shares underlying the Underwriter's Warrants, shall mean in excess underwriter except as they may relate to such Holders their ownership and their intended methods of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Actdistribution.
Appears in 1 contract
Sources: Underwriter's Warrant Agreement (All American Food Group Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares Units underlying the UnderwriterRepresentative's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities")Purchase Options, such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' Holder(s) counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c). If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their securities hereunder.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Units (inclusive of the Shares, Warrants and Warrant Shares underlying the Units) underlying the Representative's Purchase Options included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities Units underlying same to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Representative contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Securities Units underlying the Representative's Purchase Options to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter Representative has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their UnderwriterRepresentative's Unit Warrants or the Underwriter's Warrants Purchase Options prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Units underlying the Representative's Purchase Options to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 7.3 hereof, or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws be or rules remain effective during the effectiveness of the National Association of Securities Dealersa registration statement filed pursuant to Section 7.3 hereof, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Representative's Purchase Options and independent auditors, all to Units underlying same representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestsecurities.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, have made "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below, and the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable National Association of Securities covered by such registration statementDealers, at any time when a prospectus relating thereto is required Inc. ("NASD"). Such investigation shall include access to be delivered under books, records and properties and opportunities to discuss the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light business of the circumstances under which they were madeCompany with its officers and independent auditors, all to such reasonable extent and upon receipt of at such notice the Underwriter reasonable times and each as often as any such Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madereasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Units underlying same requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Units underlying same and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders, their intended methods of distribution, and except for matters related to disclosures with respect to such Holders, contained or required to be contained, in such registration statement under the Act and the rules and regulations thereunder.
(1) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the UnderwriterRepresentative's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsPurchase Options, shall mean in excess of fifty percent (50%) of the then outstanding UnderwriterRepresentative's Warrants and Underwriter's Shares Purchase Options assuming full exercise thereof that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their families, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Representative's Purchase Option Agreement (Sportstrac Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 Sections 7.3 and 7.4 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 and 7.2 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).all
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, Holder(s); provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring For a period of one hundred eighty (180) days after the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing effectiveness of any registration statement filed pursuant to Section 7.4 hereof, the Company shall not permit any other registration statement (other than (1) a registration statement relating to the securities for which the Company has granted demand registration rights, as described in the Prospectus included in the Registration Statement, (2) a registration statement relating to the shares of Common Stock issuable upon exercise of the Redeemable Warrants issued to the public pursuant to the Registration Statement, (3) a registration statement relating to the securities for which the Company has granted piggyback registration rights, as described in the Prospectus included in the Registration Statement and (4) a registration statement filed on Forms S-4 or S-8) to be or remain effective during the effectiveness thereofof a registration statement filed pursuant to Section 7.4 hereof, without the prior written consent of the Holders of the Registrable Securities representing a Majority of such securities.
(g) The Company shall deliver promptly furnish to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(jh) The Company shall promptly notify as soon as practicable after the Underwriter effective date of any registration statement filed pursuant to Sections 7.3 and each Holder 7.4 hereof, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of
(i) The Company shall deliver promptly to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all written correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Company's discovery that, or upon the happening of any event registration statement as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or it deems reasonably necessary to make the statements therein not misleading in the light comply with applicable securities laws or rules of the circumstances under which they were madeNASD. Such investigation shall include access to books, records and upon receipt of such notice properties and opportunities to discuss the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request business of the Underwriter or Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such HolderHolder or underwriter shall reasonably request.
(j) With respect to any registration under Section 7.4 hereof, the Company shall promptly prepare enter into an underwriting agreement with the managing underwriter selected for such underwriting by the Initiating Holders or the Paying Holders, as the case may be, which may be the Underwriter. Such agreement shall be satisfactory in form and furnish substance to the Underwriter or such Company, each Holder and each such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, if anyat their option, a reasonable number require that any or all the representations, warranties and covenants of copies of a supplement the Company to or an amendment for the benefit of such prospectus as may underwriters shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement of a material fact or omit to state a material fact be required to be stated therein make any representations or necessary warranties to make or agreements with the statements therein not misleading in Company or the light underwriters, except as they may relate to such Holders and their intended methods of the circumstances under which they were madedistribution.
(k) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsRegistrable Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants, Shares, Underlying Warrants and Underwriter's Shares shares of Common Stock issued upon exercise of the Underlying Warrants that have (i) are not been resold held by the Company, an affiliate, officer, creditor, employee
(l) Nothing contained in this Agreement shall be construed as requiring the Holder(s) to exercise their Warrants or Underlying Warrants prior to the public pursuant to Rule 144 under the Act or a initial filing of any registration statement filed with or the Commission under effectiveness thereof.
(m) In addition to the ActRegistrable Securities, upon the written request therefor, by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, including without limitation restricted shares of Common Stock, options, warrants or any other securities convertible into shares of Common Stock.
Appears in 1 contract
Sources: Underwriter's Warrant Agreement (Genisys Reservation Systems Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five (45) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(d). If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental or special damages (which may include damages due to a loss sustained by the Holder(s) requesting registration of profit)their Warrant Securities, excluding consequential damages.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement. The Company further agree(s) that upon demand by an indemnified person, at any time or from time to time, it will promptly reimburse such indemnified person for any loss, claim, damage, liability, cost or expense actually and reasonably paid by the indemnified person as to which the Company has indemnified such person pursuant hereto. Notwithstanding the foregoing provisions of this Section 7.4(d) any such payment or reimbursement by the Company of fees, expenses or disbursements incurred by an indemnified person in any proceeding in which a final judgment by a court of competent jurisdiction (after all appeals or the expiration of time to appeal) is entered against the Company or such indemnified person as a direct result of the Holder(s) or such person's gross negligence or willful misfeasance will be promptly repaid to the Company.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company. The Holder(s) further agree(s) that upon demand by an indemnified person, at any time or from time to time, they will promptly reimburse such indemnified person for any loss, claim, damage, liability, cost or expense actually and reasonably paid by the indemnified person as to which the Holder(s) have indemnified such person pursuant hereto. Notwithstanding the foregoing provisions of this Section 7.4(e) any such payment or reimbursement by the Holder(s) of fees, expenses or disbursements incurred by an indemnified person in any proceeding in which a final judgment by a court of competent jurisdiction (after all appeals or the expiration of time to appeal) is entered against the Company and to provide for just and equitable contribution or such indemnified person as set forth in Section 6 a direct result of the Underwriting AgreementCompany or such person's gross negligence or willful misfeasance will be promptly repaid to the Holder(s).
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 7.3 hereof, or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigationregistration statement, upon reasonable advance notice, with respect to information contained in or omitted from the other than a registration statement as it deems reasonably necessary that has been declared effective, to comply with applicable securities laws be or rules remain effective during the effectiveness of the National Association of Securities Dealersa registration statement filed pursuant to Section 7.3 hereof, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditors, Warrant Securities representing a Majority of such securities (assuming the exercise of all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestWarrants).
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading participating in the light of offering requesting the circumstances under which they were made, correspondence and upon receipt of such notice the Underwriter memoranda described below and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each managing underwriter, if any, a reasonable number of copies of a supplement all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or an amendment of such prospectus as may be necessary so that, as thereafter delivered its staff with respect to the purchasers of registration statement and permit each Holder and underwriter to do such securitiesinvestigation, such prospectus shall not include an untrue upon reasonable advance notice, with respect to information contained in or omitted from the registration statement of a material fact or omit to state a material fact required to be stated therein or as it deems reasonably necessary to make the statements therein not misleading in the light comply with applicable securities laws or rules of the circumstances under which they were madeNASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting, which may be the Underwriter. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(l) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, including without limitation, restricted shares of Common Stock, options, warrants or any other securities convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, Warrant Securities shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Underwriter's Warrant Agreement (Cti Industries Corp)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 8.2 or 7.2 Section 8.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five (45) 30 days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Warrant Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested. Notwithstanding the foregoing, the Company shall be entitled to postpone, for a period of not more than 120 days after receipt of a request to effect a registration, the filing of any registration statement otherwise required to be prepared and filed by it pursuant to Section 8.3 hereof if, at the time it receives a request for registration, the Board of Directors of the Company determines in its reasonable business judgment that such registration and offering would interfere with any material financing, acquisition, corporate reorganization or other material transaction or development involving the Company and promptly gives the Holders demanding registration written notice of such determination; provided that (i) upon such postponement by the Company, the Company shall be required to file such registration statement as soon as practicable after the Board of Directors of the Company shall determine, in its reasonable business judgment, that such registration and offering will not interfere with the aforesaid material financing, acquisition, corporate reorganization or other material transaction or development involving the Company, (ii) the Company may not utilize this right more than once, (iii) the Holders who made such written request to effect such registration, may, at any time in writing, withdraw such request for such registration and therefore preserve the rights provided in Section 8.3 hereof for such Holders to again request such registration, and (iv) the Exercise Period shall automatically be extended by an additional 180 days.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 8.2 and 7.2 8.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 8.3(c). If the Company shall fail to comply with the provisions of Section 7.48.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter Holder(s), extend the Exercise Period by such number of days as shall equal the delay caused by the Company's failure, and the other Holders, be liable for any or all actual damages (which as the Holder(s) may include damages due be entitled to as a loss matter of profit)law.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall agrees to indemnify the Underwriter and all other Holders hold harmless each Holder of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement ("Registration Statement") and each person, if any, who controls any such Underwriter or Holders Holder within the meaning of Section 15 of the Act or Section 20(a) 20 of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), and each of them, from and against any and all loss, liability, claim, damage, expense or liability action, joint or several (including including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever and any amount paid in settlement of any litigation, commenced or threatened, or of any claim whatsoever) , if such settlement is effected with the written consent of the Company, which consent shall not be unreasonably withheld), to which they or any of them may become subject under the Act, the 1934 Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, arising from insofar as such registration loss, liability, claim, damage, expense or action arises out of (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in a preliminary prospectus or prospectus (or any amendment or supplement thereto), or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statement therein, in light of the circumstances under which they were made, not misleading, or (iii) any untrue statement or alleged untrue statement of a material fact contained in any application or other document executed by the Company or based upon written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify all or any of the Warrant Shares under the securities laws thereof or filed with the Securities and Exchange Commission ("SEC"), the National Association of Securities Dealers, Inc. ("NASD") or any securities exchange, or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the Company shall not be liable in any such case to the same extent that such untrue statement or omission or such alleged untrue statement or omission was made in reliance upon and in conformity with information furnished in writing by or on behalf of any Holder to the same effect as Company expressly for use in the provisions pursuant Registration Statement (or any amendment thereto), any such preliminary prospectus or the prospectus (or any amendment or supplement thereto) or any such application or document. The indemnity contained in this Section 8.4(d) is in addition to any liability which the Company has agreed may otherwise have to indemnify the Underwriter in Section 5 any Holder or any controlling person of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementa Holder.
(e) The Underwriter Each Holder severally agrees that it will indemnify and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify hold harmless the Company, each of its officers and directors who signs the Registration Statement, each of its directors, and each person, if any, person who controls the Company within the meaning of Section 15 of the Act or Section 20(a) 20 of the 1934 Act, Exchange Act against any and all loss, liability, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigatingaction, preparing joint or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement several to the same extent and with the same effect as the provisions foregoing indemnity from the Company to the Holders, but only with respect to statements or omissions made in the Registration Statement (or any amendment thereto) or a preliminary prospectus or the prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information furnished in writing by such Holder to the Company expressly for use in the Registration Statement (or any amendment thereto). The indemnity contained in this Section 5 of the Underwriting Agreement pursuant 8.4(e) is in addition to any liability which the Underwriter has agreed any Holder may otherwise have to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 or any of the Underwriting Agreementits directors, officers or controlling persons.
(f) Promptly after receipt by an indemnified party under this Section 8.4 of notice of any claim, threatened claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under this Section 8.4, notify the indemnifying party in writing of the claim, threatened claim or the commencement of that action; provided, however, that the failure to notify an indemnifying party shall not relieve such indemnifying party from any liability which it may have to an indemnified party otherwise than under this Section 8.4. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein, and to the extent that it wishes, jointly with any other similarly notified indemnified party, to assume the defense thereof with its counsel, who shall be reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim, threatened claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 8.4 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation provided, however, that any indemnified party shall have the right to employ counsel to represent it and its controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by such indemnified party against the Company under this Section 8.4 if, in the reasonable judgment of such indemnified party, it is necessary for it to be represented by separate counsel in order to avoid an actual or potential conflict of interest or if it shall have reasonably concluded that there may be defenses available to it, and its controlling persons different from or in addition to those available to the Company, and in either such event the reasonable fees and expenses of such separate counsel shall be paid by the Company. An indemnifying party shall not be liable for any settlement of any action or claims effected without its written consent (which consent shall not unreasonably be withheld).
(g) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(gh) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Shares to be included in any registration statement filed pursuant to Section 8.3 hereof, or file any other registration statement subsequent to the Underwriter receipt of any notice pursuant to Section 8.3 hereof and all other Holders until 90 days after the effectiveness of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the a registration statement and permit the Underwriter and the other Holders of the Registrable Securities filed pursuant to do such investigationSection 8.3 hereof, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities Warrants and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit Warrant Shares representing a Majority of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distributionsecurities.
(i) In connection with any registration statement filed pursuant to Section 7 8.2 hereof, the Company shall furnish, or cause furnish to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, and in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as and are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify as soon as practicable after the Underwriter and each Holder effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Act, upon ) an earnings statement (which need not be audited) complying with Section 11(a) of the Company's discovery that, or upon Act and covering a period of at least 12 consecutive months beginning after the happening effective date of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) The Company shall deliver promptly to each Holder participating in the offering requesting the correspondence and memoranda described below, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriters to do such investigation upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder shall reasonably request.
(l) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(m) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Shares, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's or Warrant Shares that are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission SEC under the Act.
Appears in 1 contract
Sources: Warrant Agreement (Just Toys Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement statement, as soon as practicable, but in any event within forty-five sixty (4560) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective any registration statement for a period of up to 90 days if at the time of such request any other registration statement pursuant to which shares of Common Stock of the Company are to be or were sold has been filed with the Commission and not withdrawn or has been declared effective within the prior 60 days; and
(ii) the Company may delay the filing or effectiveness of the registration statement for a period of up to 90 days after the date of a request for registration if at the earliest practicable time, and shall furnish to time of such request the Underwriter and each Holder desiring to sell Company is engaged in a firm commitment underwritten public offering of Common Stock in which the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made may include their Warrant Securities pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requestedSection 7.1 hereof.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting or selling commissions)costs, fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 and 7.2 7.2(a) hereof (excluding fees and expenses of the Representative's and Holders' counsel and accountants and any underwriting or selling commissions) including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) whose Warrant Securities are the subject of a Registration Statement filed pursuant to Section 7.2(c) will pay all reasonable costs, fees and expenses in connection therewith, including, without limitation, registration fees, legal and accounting fees, printing fees, blue sky fees and expenses that have been approved in advance by a majority of the Holders participating in such registration. If the Company shall fail to comply with the provisions of Section 7.47.3(a) hereof, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other such Holders, extend the Exercise Period by such number of days as shall equal the delay caused by the Company's failure and be liable for any or all actual incidental, special and consequential damages (which may include damages due to a loss of profit)sustained by such Holders.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that provided, that, the Company shall not be obligated to execute qualify generally to do business in any jurisdiction where it is not then so qualified or file to take any action which would subject it to general consent to service of process or to qualify as a foreign corporation to do business under the laws of taxation in any such jurisdictionjurisdiction where it is not then so subject.
(d) The Company shall indemnify furnish without charge to each Holder of Warrant Securities, promptly after filing thereof with the Underwriter and all other Holders Commission, at least one copy of the Registrable Securities to be sold registration statement filed pursuant to any registration statement Section 7.1 or 7.2 (a "Registration Statement") and each person, if any, who controls such Underwriter amendment thereto or Holders within each amendment or supplement to the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended prospectus included therein (the "1934 ActProspectus"), against all loss, claim, damage, expense or liability () including all expenses reasonably incurred financial statements and schedules, documents incorporated by reference therein and if the Holder so requests in investigatingwriting, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementall exhibits thereto.
(e) The Underwriter Company shall take such action as may be reasonably necessary so that (i) the Registration Statement and any amendment thereto and any Prospectus forming a part thereof and any supplement or amendment thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) the Registration Statement and any amendment thereto (in either case, other Holders of the Registrable Securities than with respect to be sold pursuant written information furnished to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of any Holder specifically for inclusion therein) does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make any statement therein not misleading and (iii) the Prospectus and any supplement thereto (in either case, other than with respect to such information from Holders), does not include an untrue statement of a material fact or their successors or assignsomit to state a material fact necessary in order to make the statements therein, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 light of the Underwriting Agreement pursuant to circumstances under which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementthey were made, not misleading.
(f) The Company shall promptly advise the Holders of Warrant Securities registered under the Registration Statement (which advice pursuant to clauses (ii) - (iv) shall be accompanied by an instruction to
(i) when the Registration Statement and any amendment thereto has been filed with the Commission and when the Registration Statement or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information relating thereto;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension by any state securities commission of the qualification of the Warrant Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and
(iv) of the happening of any event that requires the making of any changes in the Prospectus so that, as of such date, the Prospectus does not contain an untrue statement of a material fact and does not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(g) If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Warrant Securities under state securities or Blue Sky laws, the Company shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(h) The Company shall, during the period the Company is obligated to maintain the effectiveness of a Registration Statement under Section 7.2 hereof, deliver to each Holder of Warrant Securities included under the Registration Statement, without charge, such reasonable number of copies of the Prospectus (including each preliminary prospectus) included in the Registration Statement and any amendment or supplement thereto as such Holder may reasonably request to facilitate the public sale or other disposition of the Warrant Securities by the selling Holder.
(i) The Company shall cooperate with the Holders and the underwriter(s), if any, to facilitate the timely preparation and delivery of certificates representing Warrant Securities to be sold under the Registration Statement, free of any restrictive legends and in such denominations and registered in such names as the Holders or the underwriter(s), if any, may reasonably request in connection with the sales of Warrant Securities pursuant to the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 7.3(f)(ii) - (iv) hereof or any request by the Commission for any amendments to the Registration Statement or for additional information relating thereto or the happening of any event that requires the making of any changes in the Registration Statement, the Company shall file (and use its reasonable best efforts to have declared effective as soon as possible) a post-effective amendment to the Registration Statement or an amendment or supplement to the Prospectus or file any other required document so that, as thereafter delivered to the purchasers of Warrant Securities registered under the Registration Statement, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in light of the circumstances under which they were made not misleading. Each Holder of Warrant Securities registered under the Registration Statement agrees by acquisition of such Warrant Securities that, upon receipt of any notice from the Company of the existence of any fact of the kind described in Section 7.3(f)(ii) - (iv) hereof, such Holder will forthwith discontinue disposition of Warrant Securities pursuant to the Registration Statement until such Holder receives copies of the supplemented or amended Prospectus contemplated by this Section 7.3(j), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and such Holder has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus. If so directed by the Company, each Holder will
(k) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(gl) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and not permit the Underwriter and the inclusion of any securities other Holders of the Registrable than Warrant Securities to do such investigation, upon reasonable advance notice, with respect be included in any Registration Statement filed pursuant to information contained in Section 7.2(a) or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information 7.2(c) hereof without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders representing a majority of the Company with its officers and independent auditorsHolders then requesting registration under such Section 7.2(a) or Section 7.2(c), all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestrespectively.
(hm) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement Registration Statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) if and to the extent permitted by Statement of Auditing Standards No. 72, a "cold comfort" letter, letter dated the effective date of such registration statement Registration Statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statementRegistration Statement, in each case covering substantially the same matters with respect to such registration statement Registration Statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(jn) The Company shall as soon as practicable after the effective date of the Registration Statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Securities Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Securities Act and covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement.
(o) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering upon request, and to the managing underwriters, if any, copies of all correspondence between the Commission and the Company, its counsel or accountants and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement and shall permit each Holder and such underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent accountants, all to such reasonable extent and at such reasonable times and as often as any Holder or underwriter shall reasonably request.
(p) With respect to the registration of Warrant Securities covered by such registration statement, at any time when a prospectus relating thereto is required pursuant to Section 7.2 to be delivered under sold to an underwriter for reoffering to the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holderpublic, the Company shall promptly prepare negotiate in good faith with respect to entering into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a majority of the Warrant Securities requested to be included in such underwriting, which may include the Representative. Such agreement shall be satisfactory in form and furnish substance to the Underwriter or such Company, each Holder and each such managing underwriter and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, if anyat their option, a reasonable number require that any or all the representations, warranties and covenants of copies of a supplement the Company to or an amendment for the benefit of such prospectus as may underwriters shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement of a material fact or omit to state a material fact be required to make any representations or warranties to or agreements with the Company except as they may relate to such Holders and their intended methods of distribution and shall not be stated therein or necessary requested by the Company to make the statements therein not misleading provide indemnification except as provided in the light of the circumstances under which they were madeSection 7.3(s) hereof.
(kr) For purposes of this Agreement, wherever a specified percent of Holders is required to take action, such percentage shall be calculated: (i) assuming the term "majority" in reference to the Underwriter and the other Holders immediate exercise of all of the Underwriter's Unit Warrantsoutstanding Warrants for Common Stock and (ii) excluding the shares of Common Stock then issued or issuable pursuant to Warrants that (x) are held by the Company, Underwriter's Unitsan affiliate or officer thereof or any of their respective affiliates, Underwriter's Shares, Underwriter's Warrants members of their family or the Common Shares underlying the Underwriter's Warrants, shall mean persons acting as their nominees or in excess of fifty percent conjunction therewith or (50%y) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement Registration Statement filed with the Commission under the Securities Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c). If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental or special damages (which may include damages due to a loss sustained by the Holder(s) requesting registration of profit)their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the The Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such HoldersHolder, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 7.3 hereof, or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws be or rules remain effective during the effectiveness of the National Association of Securities Dealersa registration statement filed pursuant to Section 7.3 hereof, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditors, all to Warrant Securities representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestsecurities.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting under-writing agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and and. the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(ji) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement. The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriters to do such investigation upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable National Association of Securities covered Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting, which may be the Representatives, or either of them. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holder(s) shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenant s of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holder. Such Holder shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holder and their intended methods of distribution.
(1) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Actincluding without limitation restricted shares of Common Stock, upon the Company's discovery thatoptions, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter warrants or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number other securities convertible into shares of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madeCommon Stock.
(km) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 8.2 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five (45) days of receipt of any demand therefor in accordance with Section 7.1, shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' Holder(s)’ counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 and 7.2 Section 8.2 hereof including, without limitation, the Company's ’s legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(cb) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(dc) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 “Exchange Act"”), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementstatement.
(e) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(fd) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(ge) The Company shall deliver promptly furnish to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriterunderwriters, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "“cold comfort" letter, ” letter dated the effective date of such registration statement (and, if such registration includes relates to an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's ’s financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' ’ letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's ’s counsel and in accountants' ’ letters delivered to underwriters in underwritten public offerings of securities.
(jf) The Company shall promptly notify as soon as practicable after the Underwriter effective date of any registration statement filed pursuant to this Section 8, and each Holder in any event within 15 months thereafter, make “generally available to its security holders” (within the meaning of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered Rule 158 under the Act, upon ) an earnings statement (which need not be audited) complying with Section 11(a) of the Company's discovery that, or upon Act and covering a period of at least 12 consecutive months beginning after the happening effective date of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(kg) For purposes of this Agreement, the term "majority" “Majority” in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Warrant Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's or Warrant Shares that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Warrant Agreement (Algodon Wines & Luxury Development Group, Inc.)
Covenants of the Company With Respect to Registration. In connection with any registration registrations under Section 7.1 or 7.2 Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five (45) calendar days of receipt of any demand therefor pursuant to section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in accordance with Section 7.1a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all any registration statements statement filed pursuant to Sections 7.1 7(b) and 7.2 7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47(d), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual incidental and special damages (which may include and damages due to a loss of profit)profit sustained by the Holders requesting registration of their Registrable Securities.
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 8 of the Underwriting Agreement Agreement, and the Holders shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the Underwriter has agreed to indemnify the Company contained in Section 6 8 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Securities Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants (or the Underwriter's Warrants purchasable upon exercise thereof) prior to the initial filing of any registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Registrable Securities in any registration statement filed pursuant to Section 7(b) hereof without the prior written consent of the Holders of a Majority of the Registrable Securities.
(8) The Company shall furnish to a designated representative of the Holders participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration relates to an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration relates to an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement (the "Accountants"), in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' "cold comfort" letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in "cold comfort" letters, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in "cold comfort" letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective date of the registration statement make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section ll(a) of the Securities Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff Accountants with respect to the registration statement and permit the Underwriter each Holder and the other Holders of the Registrable Securities underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditorsrepresentatives of the Accountants, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other such Holder of the Registrable Securities shall reasonably request.
(h11) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters the managing underwriter selected for such underwriting by Holders holding a Majority of the Registrable Securities requested to be included in such underwriting; provided, however, that (i) such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter, and (ii) the Holders shall be responsible for any selling fees or commissions in connection with such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter a Majority of such Holders and each other Holder of the Registrable Securitiessuch managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwritersmanaging underwriter. If required by the underwriters, the Underwriter and the other The Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, shall also be made to and for the benefit of the Underwriter and the other such Holders. Such Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other such Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration registrations under Section 7.1 or 7.2 Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five (45) calendar days of receipt of any demand therefor pursuant to Section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in accordance with Section 7.1a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Underwriters' Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all the first registration statements statement filed pursuant to Sections 7.1 7(b) and 7.2 7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c3) The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Underwriters' Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders of the Registrable Underwriters' Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders of the Registrable Underwriters' Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors officers, directors, attorneys, representatives and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Underwriters' Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Underwriters' Securities in any registration statement filed pursuant to Section 7(b) hereof without the prior written consent, which consent shall not be unreasonably withheld, of the Holders of the Underwriters' Warrants and Underwriters' Securities representing a Majority of such securities (assuming exercise of all of the Underwriters' Warrants).
(8) The Company shall furnish to a designated representative of the Holders participating in the offering and to each underwriter, if any, a signed counterpart, addressed to the Company or the underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) if such registration includes an underwritten public offering a copy of the "cold comfort" letter dated the effective date of such registration statement signed by each independent public accountant who has issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letters with respect to events subsequent to the date of such financial statements, as are duly covered in opinions of issuer's counsel and in accountants' letters, with respect to customary events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 1 (a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter each Holder and the other Holders of the Registrable Securities underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other such Holder of the Registrable Securities shall reasonably request.
(h11) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters the managing underwriter selected for such underwriting by Holders holding a Majority of the Underwriters' Securities requested to be included in such underwriting, provided, however that (i) such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter or underwriters, and (ii) the Holders shall be responsible for any selling fees or commissions in connection with such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter a Majority of such Holders (in respect of a registration under Section 7(b) only) and each other Holder of the Registrable Securitiessuch managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwritersmanaging underwriter. If required by the underwriters, the Underwriter and the other The Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Underwriters' Securities and may, at their option, require that any or all the representations representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, shall also be made to and for the benefit of the Underwriter and the other such Holders. Such Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other such Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Underwriters' Warrant Agreement (Rockwell Medical Technologies Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 and 7.2 7.2(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.2(c). If the Company shall fail to comply with the provisions of Section 7.47.3(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental or special damages (which may include damages due to a loss sustained by the Holder(s) requesting registration of profit)their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementstatement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such HoldersHolder, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementstatement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and permit the Underwriter and the other Holders of the Registrable Securities filed pursuant to do such investigationSection 7.2 hereof, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holder(s) of the Company with its officers Warrants and independent auditors, all to Warrant Securities representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestsecurities.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable National Association of Securities covered Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holder(s) holding a Majority of the Warrant Securities requested to be included in such underwriting, which may be Ryan, Beck. Such agreement shall be satisfactory in form and substanc▇ ▇▇ t▇▇ ▇ompany, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holder(s) shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holder(s). Such Holder(s) shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holder(s) and their intended methods of distribution.
(l) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Actincluding without limitation restricted shares of Common Stock, upon the Company's discovery thatoptions, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter warrants or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number other securities convertible into shares of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madeCommon Stock.
(km) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders Holder(s) of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration registrations under Section 7.1 or 7.2 Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five (45) calendar days of receipt of any demand therefor pursuant to Section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in accordance with Section 7.1a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Underwriters' Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all the first registration statements statement filed pursuant to Sections 7.1 7(b) and 7.2 7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c3) The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Underwriters' Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders of the Registrable Underwriters' Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders of the Registrable Underwriters' Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Underwriters' Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Underwriters' Securities in any registration statement filed pursuant to Section 7(b) hereof without the prior written consent, which consent shall not be unreasonably withheld, of the Holders of the Underwriters' Warrants and Underwriters' Securities representing a Majority of such securities (assuming exercise of all of the Underwriters' Warrants).
(8) The Company shall furnish to a designated representative of the Holders participating in the offering and to each underwriter, if any, a signed counterpart, addressed to the Company or the underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) if such registration includes an underwritten public offering a copy of the "cold comfort" letter dated the effective date of such registration statement signed by each independent public accountant who has issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letters. with respect to events subsequent to the date of such financial statements, as are duly covered in opinions of issuer's counsel and in accountants' letters, with respect to customary events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective
(10) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter each Holder and the other Holders of the Registrable Securities underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other such Holder of the Registrable Securities shall reasonably request.
(h11) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters the managing underwriter selected for such underwriting by Holders holding a Majority of the Underwriters' Securities requested to be included in such underwriting. Such underwriting agreement , provided, however that (i) such managing underwriter shall be satisfactory in form and substance reasonably acceptable to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained except that in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereofan offering for which the Holders have piggyback rights, the Company shall furnish, have the sole right to select the managing underwriter or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement)underwriters, and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.shall
Appears in 1 contract
Sources: Underwriters' Warrant Agreement (Rockwell Medical Technologies Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 Sections 9.2 or 7.2 9.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five ninety (4590) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts and to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Warrant Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requestedrequested and shall maintain the effectiveness of such registration statement for a period of at least twelve (12) months. Notwithstanding the foregoing sentence, the Company shall be entitled one time only to postpone the filing of any registration statement otherwise required to be prepared and filed by it pursuant to this Section 9.4(a) if the Company is (i) publicly committed to a self-tender or exchange offer and the filing of a registration statement would cause a violation of Regulation M under the Securities Exchange Act of 1934, as amended (the "Exchange Act") or (ii) involved in negotiating or consummating an acquisition or merger which would make such registration impracticable, in either of which cases the filing of the registration statement may be delayed for a period of up to 60 days. The Company shall promptly deliver to the Holders a written notice of postponement, which notice shall specifically set forth the reason for such postponement. Following the delivery of such notice, the Company shall be required to file the postponed registration statement upon the earlier of (i) the consummation or termination, as applicable, of the event requiring such postponement (ii) 60 days after delivery of the aforementioned notice.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions, and excluding roadshow expenses if the only shares to be registered in such Registration Statement are Warrant Shares), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 9.2 and 7.2 9.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If The Holder(s) will pay all costs, fees and expenses (including those of the Company shall fail to comply Company)in connection with the provisions of registration statement filed pursuant to Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit9.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders of Holder(s)of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished in writing by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and not permit the Underwriter and inclusion of any securities other than the other Holders of the Registrable Securities Warrant Shares to do such investigation, upon reasonable advance notice, with respect to information contained be included in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 9.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 9.3 hereof (other than registration statements filed prior to an exercise of registration rights by a Holder of Underwriter's Warrants and/or Warrant Shares pursuant to Section 9.2 hereof), without the prior written consent of ▇▇▇▇▇▇▇▇ or as otherwise required by the terms of any existing registration rights granted prior to the date of this Agreement by the Company to the holders of any of the Company's securities.
(h) In the event of an underwritten offering, the Company shall furnish, or cause furnish to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, underwriter a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(ji) The Company shall promptly notify as soon as practicable after the Underwriter and each Holder effective date of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of and in any event as a result of whichwithin 15 months thereafter, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.generally available to
Appears in 1 contract
Sources: Underwriter's Warrant Agreement (Infinite Technology Group LTD)
Covenants of the Company With Respect to Registration. In connection with any registration registrations under Section 7.1 or 7.2 Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) calendar days of receipt of any demand therefor pursuant to Section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in accordance with Section 7.1a report on Form 10-K or Form 10-Q, as the case may be. The Company shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the UnderwriterRepresentative's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all any registration statements statement filed pursuant to Sections 7.1 7(b) and 7.2 7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c3) The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Representative's Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders of the Registrable Representative's Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended 1934 (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Representative contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders of the Registrable Representative's Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter Representative has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their UnderwriterRepresentative's Unit Warrants or the Underwriter's Warrants Warrant prior to the initial filing of any registration statement or the effectiveness thereof, provided that such Holders have made arrangements reasonably satisfactory to the Company to pay the exercise price from the proceeds of such offering.
(g7) The Company shall furnish to each Representative for the offering, if any, such documents as such Representative may reasonably require.
(8) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration
(9) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities each Holder participating in the offering requesting the correspondence described below and any managing Representative copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter each Holder and the other Holders of the Registrable Securities Representative to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other such Holder of the Registrable Securities shall reasonably request.
(h10) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters the managing underwriter selected for such underwriting by Holders holding a Majority of the Representative's Securities requested to be included in such underwriting, provided, however that such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter or underwriters. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter a Majority of such Holders (in respect of a registration under Section 7(b) only) and each other Holder of the Registrable Securitiessuch managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriterstype. If required by the underwriters, the Underwriter and the other The Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Representative's Securities. The Underwriter and the other Such Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other such Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Representative's Warrant Agreement (Outlook Sports Technology Inc)
Covenants of the Company With Respect to Registration. In connection with any the registration under Section 7.1 or 7.2 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five ninety (4590) days of receipt of any demand therefor in accordance with Section 7.1the date hereof, shall use its best efforts to have any such registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Stock such number of prospectuses as shall reasonably be requested, and shall maintain the effectiveness of the registration statement for one year from its effective date.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections Section 7.1 and 7.2 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Common Stock included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementstatement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Securities Common Stock to be sold pursuant to a the registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementstatement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly be permitted to the Underwriter and all include Common Stock of other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business shareholders of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as in the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 7.1 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Registration and Warrant Agreement (International Isotopes Inc)
Covenants of the Company With Respect to Registration. In connection with any registration registrations under Section 7.1 or 7.2 Sections 8(a) and 8(b) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five ninety (4590) calendar days of receipt of any demand therefor pursuant to Section 8(a); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in accordance with Section 7.1a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and to maintain the effectiveness of such Registration Statement for nine (9) months thereafter or until the registered securities are sold, whichever is earlier, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all any registration statements statement filed pursuant to Sections 7.1 8(a) and 7.2 8(b) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.48(c), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual incidental and special damages (which may include damages due to a loss sustained by the Holders requesting registration of profit)their Registrable Securities.
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each member of the Underwriter Syndicate contained in Section 5 8 of the Underwriting Agreement Agreement, and the Holders shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the members of the Syndicate have agreed to indemnify the Company contained in Section 6 8 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has members of the Syndicate have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants (or the Underwriter's Warrants purchasable upon exercise thereof) prior to the initial filing of any registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Registrable Securities in any registration statement filed pursuant to Section 8(a) hereof without the prior written consent of the Holders of a Majority of the Registrable Securities.
(8) The Company shall furnish to a designated representative of the Holders participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration relates to an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration relates to an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement (the "Accountants"), in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the Accountants' "cold comfort" letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in "cold comfort" letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective date of the registration statement make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities each Holder participating in the offering requesting the correspondence described below and any managing underwriters copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff Accountants with respect to the registration statement and permit the Underwriter each Holder and the other Holders of the Registrable Securities underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditorsrepresentatives of the Accountants, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other such Holder of the Registrable Securities shall reasonably request.
(h11) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more the managing underwriters selected for such underwriting by Holders holding a Majority of the Registrable Securities requested to be included in such underwriting; provided, however, that (i) such managing underwriters shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriters, and (ii) the Holders shall be responsible for any selling fees or commissions in connection with such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter a Majority of such Holders and each other Holder of the Registrable Securitiessuch managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwritersmanaging underwriter. If required by the underwriters, the Underwriter and the other The Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, shall also be made to and for the benefit of the Underwriter and the other such Holders. Such Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other such Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Underwriter's Warrant Agreement (International Plastic Technologies Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 9.2 or 7.2 9.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five ninety (4590) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts and to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Warrant Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested. The Company shall also file such applications and other documents as may be necessary to permit the sale of the Warrant Shares to the public during the Registration Period in those states to which the Company and the holders of the Warrants and/or Warrant Shares shall mutually agree.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 9.2 and 7.2 9.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply The Holder(s) will pay all costs, fees and expenses in connection with the provisions of registration statement filed pursuant to Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit9.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders Holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and statement.
(e) In order to provide for just and equitable contribution as set forth under the Act in Section 6 any case in which (i) any Holder of the Underwriting Warrant Shares or controlling person thereof makes a claim for indemnification but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that the express provisions of Section 9.4(d) hereof provide for indemnification in such case or (ii) contribution under the Act may be required on the part of any Holder of the Warrant Shares, or controlling person thereof, then the Company, any such Holder of the Warrant Shares, or controlling person thereof shall contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (which shall, for all purposes of this Agreement, include, but not be limited to, all costs of defense and investigation and all attorneys fees), in either such case (after contribution from others) on the basis of relative fault as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand, or a Holder of Warrant Shares, or controlling person thereof on the other, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and such Holders of such securities and such controlling persons agree that it would not be just and equitable if contribution pursuant to this Section 9.4(e) were determined by pro rata allocation or by any other method which does not take account of the equitable considerations referred to in this Section 9.4(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 9.4(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(ef) The Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all any loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by in writing by, or on behalf of of, such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementstatement.
(fg) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(gh) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Shares to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 9.3 hereof, or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary (other than a registration statement on Form S-4 or S-8) to comply with applicable securities laws be or rules remain effective during a one hundred and eighty (180) day period following the effective date of the National Association of Securities Dealersa registration statement filed pursuant to Section 9.3 hereof, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holder(s) of the Company with its officers Warrants and independent auditors, all to Warrant Shares representing a Majority of such reasonable extent and at such reasonable times and securities or as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If otherwise required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance terms of any existing registration rights granted prior to the Company, the Underwriter and each other Holder date of the Registrable Securities, and shall contain such representations, warranties and covenants this Agreement by the Company and such other terms as are customarily contained in agreements to the holders of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders any of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distributionCompany's securities.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the The Company shall furnish, or cause furnish to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a "cold comfort" letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify as soon as practicable after the Underwriter and each Holder effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Act, upon ) an earnings statement (which need not be audited) complying with Section 11(a) of the Company's discovery that, or upon Act and covering a period of at least 12 consecutive months beginning after the happening effective date of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holder(s) shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holder(s). Such Holder(s) shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holder(s) and their intended methods of distribution.
(l) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Shares, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's or Warrant Shares that (i) are not held by the Company, or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act or Rule 144 promulgated under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all the first registration statements statement filed pursuant to Sections 7.1 Section 7(b) and 7.2 any registration statement filed pursuant to Section 7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47(d)(1), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their Warrant Securities.
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 8 of the Underwriting Agreement Agreement, and the Holder(s) shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the Underwriter has agreed to indemnify the Company contained in Section 6 8 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g7) The Company shall deliver promptly not be entitled to include any securities other than the Underwriter and all other Holders of the Registrable Warrant Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and permit the Underwriter and the other Holders of the Registrable Securities filed pursuant to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information Section 7(b) hereof without the prior written consent of the Company. Such investigation shall include access to books, records Underwriter and properties and opportunities to discuss the business Holders of the Company with its officers Warrant and independent auditors, the Warrant Securities representing a Majority of such securities (assuming exercise of all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestWarrants).
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the 8) The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, and if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants accounts who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letter, with respects to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j9) The Company shall promptly notify as soon as practicable after the Underwriter and each Holder effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly to each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Company's discovery thatregistration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, or upon Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the happening business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any event as such Holder shall reasonably request.
(11) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a result Majority of which, the prospectus Warrant Securities requested to be included in such registration statementunderwriting, as then except that in effect, includes connection with an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make offering for which the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such HolderHolders have piggyback rights, the Company shall promptly prepare have the sole right to select the managing underwriter. Such underwriting agreement shall be satisfactory in form and furnish substance to the Underwriter or such Holder and each underwriter, if anyCompany, a reasonable number Majority of copies such Holders and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of a supplement that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or an amendment for the benefit of such prospectus as may underwriters shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement of a material fact or omit to state a material fact be required to be stated therein make any representations or necessary warranties to make or agreements with the statements therein not misleading in Company or the light underwriters except as they may relate to such Holders and their intended methods of the circumstances under which they were madedistribution.
(k12) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith, or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 Sections 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If The Holder(s) whose Warrant Securities are the Company shall fail subject of such registration statement will pay all costs, fees and expenses in connection with any registration statement filed pursuant to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit7.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.general
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 7.3 hereof, or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws be or rules remain effective during the effectiveness of the National Association of Securities Dealersa registration statement filed pursuant to Section 7.3 hereof, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditors, all to Warrant Securities representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestsecurities.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities covered requested to be included in such underwriting, which may be the Representative. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriter(s) shall also be made to and for the benefit of such Holders.
(l) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Actincluding without limitation restricted shares of Common Stock, upon the Company's discovery thatoptions, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter warrants or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number other securities convertible into shares of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madeCommon Stock.
(km) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Representative's Warrant Agreement (Conserver Corp of America)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 16.2 or 7.2 16.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with pursuant to Section 7.116.3, shall use its best good faith efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses prospectus as shall reasonably be requested.
(b) The Company shall pay all costs (excluding transfer taxes, if any, and fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 16.2 and 7.2 16.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 16.3(c). If the Company shall fail to comply with the provisions of Section 7.416.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, as a result of any violation by the Company of the Act, any state securities or "blue sky" laws or any rule or regulation thereunder, except to the same extent and with the same effect as the provisions Company is to be indemnified for such items pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement16.4(e) below.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a the registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementstatement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities and Securities issued by the Company to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and permit the Underwriter and the other Holders of the Registrable Securities filed pursuant to do such investigationSection 16.3 hereof, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestUnderwriter.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant With respect to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any a registration statement filed pursuant to Section 7 hereofSections 16.3, the Company shall furnish, or cause furnish to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and the managing underwriter copies of all correspondence between the Registrable Securities covered by Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Actinvestigation, upon reasonable advance notice, with respect to information contained in or omitted from the Company's discovery that, or upon the happening of any event as registration
(k) With respect to a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits filed pursuant to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such HolderSection 16.3, the Company shall promptly prepare and furnish enter into an underwriting agreement with the managing underwriter, reasonably satisfactory to the Underwriter or Company, selected for such underwriting by Holders holding a majority of the Warrant Securities requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and each such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, if anyat their option, a reasonable number require that any or all of copies the representations, warranties and covenants of a supplement the Company to or an amendment for the benefit of such prospectus as may underwriters shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement of a material fact or omit to state a material fact be required to be stated therein make any representations or necessary warranties to make or agreements with the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants Company or the Common Shares underlying the Underwriter's Warrants, shall mean in excess underwriters except as they may relate to such Holders and their intended methods of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Actdistribution.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five (45) days of receipt of any demand therefor in accordance with Section 7.1, shall use its reasonable best efforts to have any registration statement statements filed with the SEC including the Shares declared effective at the earliest practicable possible time, and shall furnish to each holder of such Shares (the Underwriter and each Holder "Holder") desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested. The Company shall keep effective any registration or qualification contemplated by this Section 7 and shall from time to time amend or supplement each applicable registration statement, preliminary prospectus, final prospectus, application, document and communication for such period of time as set forth in Section 7.1 herein.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel Holder(s) counsel, accounting and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 and Section 7.2 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If ; provided that the Company shall fail to comply with the provisions not be responsible for transfer taxes, fees and disbursement of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter accountants and the other counsel for Holders, be liable for any or all actual damages (which may include damages due to a loss of profit)and other related selling expenses incurred by Holders.
(c) The Company will take all necessary action which may be required in qualifying or registering use reasonable efforts to qualify the Registrable Securities Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction or to subject itself to taxation in any such jurisdiction.
(di) The Subject to the conditions set forth below, the Company shall agrees to indemnify and hold harmless the Underwriter and all other Holders Holder, any holder of any of the Registrable Securities to be sold pursuant to any registration statement Shares, their officers, directors, partners, employees, agents and counsel, and each person, if any, who controls any such Underwriter or Holders person within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), from and against any and all loss, liability, charge, claim, damagedamage and expense whatsoever (which shall include, for all purposes of this paragraph (d), but not be limited to, reasonable attorneys' fees and any and all expense or liability (including whatsoever reasonably incurred, and any and all expenses reasonably incurred amounts paid in investigating, preparing or defending against settlement of any claim whatsoeveror litigation), as and when incurred, arising out of, based upon, or in connection with (A) any untrue statement or alleged untrue statement of a material fact contained (Y) in any registration statement, final prospectus, or any amendment or supplement thereto, or (Z) in any application or other document or communication (in this paragraph 7(d) collectively called an "application") executed by or on behalf of the Company filed in any jurisdiction in order to which register or qualify any of them may become subject the Shares under the Actsecurities or blue sky laws thereof; or any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, unless such statement or omission was made in reliance upon and in conformity with written information furnished to the 1934 Act Company with respect to the Holder or otherwise, arising from any holder of any of the Shares by or on behalf of such Holder or such other holder expressly for inclusion in any such registration statement to the same extent and with the same effect or final prospectus, or any amendment or supplement thereto, or in any application, as the provisions pursuant to which case may be, or (B) any breach of any representation, warranty, covenant or agreement of the Company has agreed to indemnify the Underwriter contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementthis Warrant.
(eii) The Underwriter Holder and all any other Holders Holder of the Registrable Securities Shares agrees to be sold pursuant to a registration statement, indemnify and their successors and assigns, shall severally, and not jointly, indemnify hold harmless the Company, its officers and directors officers, directors, employees, agents or counsel and each other person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all lossto the same extent as the foregoing indemnity from the Company to the Holder and such other Holder in paragraph 7.2(d)(i), claimbut only with respect to statements or omissions, damage if any, made in any registration statement, preliminary prospectus, or expense final prospectus (as from time to time amended and supplemented), or liability (including all expenses reasonably incurred any amendment or supplement thereto, or in investigatingany application, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from in reliance upon and in conformity with written information furnished to the Company with respect to the Holder or such other Holder or their plan of distribution, by or on behalf of the Holder or such Holdersother Holder expressly for inclusion in any such registration statement, preliminary prospectus, or their successors final prospectus, or assignsany amendment or supplement thereto, for specific inclusion or in any application, as the case may be. If any action shall be brought against the Company or any other person so indemnified based on any such registration statement statement, preliminary prospectus, or final prospectus, or any amendment or supplement thereto, or in any application, and in respect of which indemnity may be sought against the Holder pursuant to this paragraph 7.2(d)(ii), the Holder and such other Holder shall have the rights and duties given to the same extent Company, and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and each other person so indemnified shall have the rights and duties given to provide for just and equitable contribution as set forth in Section 6 the indemnified parties, by the provisions of the Underwriting Agreementparagraph 7.2(d)(i).
(fiii) Promptly after receipt by any person in respect of which indemnity may be sought pursuant to this Section 7.2 (an "Indemnified Party") of notice of any claim or the commencement of any action, the Indemnified Party shall, if a claim in respect thereof is to be made against the person against whom such indemnity may be sought (an "Indemnifying Party") notify the Indemnifying Party in writing of the claim or the commencement of such action; provided that the failure to notify the Indemnifying Party shall not relieve it from any liability which it may have to an Indemnified Party otherwise than under this Section 7.2(d) except to the extent of any actual prejudice resulting therefore. If any such claim or action shall be brought against an Indemnified Party and it shall notify the Indemnifying Party thereof, the Indemnifying Party shall be entitled to participate therein, and, to the extent that it wishes, jointly with any other similarly notified Indemnifying Party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation; provided that the Indemnified Party shall have the right to employ separate counsel to represent the Indemnified Party in connection with any claim in respect of which indemnity may be sought by the Indemnified Party against the Indemnifying Party, but the fees and expenses of such counsel shall be for the account of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed in writing to the retention of such counsel or (B) the Indemnifying Party shall not have assumed the defense thereof with counsel reasonably satisfactory to the Indemnified Party or (C) in the opinion of counsel to such Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential conflicts of interest between them, it being understood however, that the Indemnifying Party shall not, in connection with any one such claim or action or separate but substantially similar or related claims or actions in the same jurisdiction arising out of the same allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with local counsel) at any time for all Indemnified Parties. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any claim or pending or threatened proceeding in respect of which the Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party and such settlement includes an unconditional release of such Indemnified Party from all liability arising out of such claim or proceeding. Whether or not the defense of any claim or action is assumed by the Indemnifying Party, such Indemnifying Party will not be subject to any liability for any settlement made without its consent, which consent will not be unreasonably withheld.
(e) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(gf) The Company as soon as practicable, but in any event not later than 45 days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the registration statement occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), shall deliver promptly make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Underwriter Holder, an earnings statement which will be in the detail required by, and all other Holders will otherwise comply with, the provisions of Section 11(a) of the Registrable Securities participating in Act and Rule 158(a) of the offering copies Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of all correspondence between at least 12 consecutive months after the Commission and effective date of the Company, its counsel or auditors and all memoranda relating to discussions Registration Statement.
(g) In connection with the Commission or its staff registration of the Shares, the Holders shall have the following obligations:
(i) It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the registration statement and permit Shares of a particular Holder that such Holder shall furnish to the Underwriter Company such information in writing regarding itself, the Shares held by it, and the other Holders intended method of disposition of the Registrable Securities Shares held by it, as shall be reasonably required to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from effect the registration of such Shares, including without limitation a statement as it deems reasonably necessary to comply with applicable securities laws or rules the number of Shares proposed to be sold and the intended method(s) of distribution and a statement of the National Association firm intent of Securities Dealerssuch Holder to offer Shares for sale. In addition, Inc. ("NASD"); provided that the Underwriter and each Holder shall execute such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters documents in connection with an underwritten offering which includes Registrable Securities pursuant such registration as the Company may reasonably request. At least five (5) days prior to this Section 7the first anticipated filing date of the Registration Statement, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered information the Company requires from each such Holder (the "Requested Information") if such Holder elects to have any of such H▇▇▇▇▇'s Shares included in the Registration Statement. If at least two (2) business days prior to the filing date the Company has not received the Requested Information from a Holder (a "Non- Responsive Holder"), then the Company may file the Registration Statement without including Shares of such Non-Responsive Holder;
(ii) Each Holder, by such registration statementH▇▇▇▇▇'s acceptance of the Shares, at any time when a prospectus relating thereto is required agrees to be delivered under cooperate with the ActCompany as reasonably requested by the Company in connection with the preparation and filing of the Registration Statement hereunder, unless such H▇▇▇▇▇ has notified the Company in writing of such H▇▇▇▇▇'s election to exclude all of such H▇▇▇▇▇'s Shares from the Registration Statement; and
(iii) Each Holder agrees that, upon receipt of any notice from the Company's discovery that, or upon Company of (A) the happening of any event as a result of which, which the prospectus included in such the registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
, not misleading; or (kB) For purposes the issuance by the SEC of this Agreementany stop order or other suspension of the effectiveness of the registration statement, the term "majority" in reference such Holder will immediately discontinue disposition of Shares pursuant to the Underwriter and the other Holders Registration Statement covering such Shares until such Holder's receipt of the Underwriter's Unit Warrantscopies of a supplemented or amended Prospectus in the case of all event described in clause (A) above, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) a notice of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold removal of any suspension in the case of an event described in clause (B) above. If so directed by the Company, such H▇▇▇▇▇ shall deliver to the public pursuant Company or destroy (and deliver to Rule 144 under the Act or Company a registration statement filed with certificate of destruction) all copies in such H▇▇▇▇▇'s possession of the Commission under prospectus covering such Shares at the Acttime of receipt of such notice.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 Sections 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five (45) days of promptly after receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Warrant Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 and 7.2 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(dc) The Company shall indemnify the Underwriter and all other Holders of the Registrable Securities Shares to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Act or otherwise, arising from in connection with the offer and sale of the Warrant Shares; provided, however, that the Company will not be liable in any such case to the extent that any such claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or an omission or alleged omission made in such registration statement in reliance upon and in conformity with written information furnished to the same extent and with Company by the same effect as Holder(s) or any such controlling persons specifically for use in the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementpreparation thereof.
(ed) The Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from written information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement statement; provided, however, that the indemnity of such Holders will apply in each case if and to the same extent extent, but only if and to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in such registration statement in reliance upon and in conformity with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant written information furnished to which the Underwriter has agreed to indemnify the Company and to provide by such Holders, specifically for just and equitable contribution as set forth use in Section 6 of the Underwriting Agreementpreparation thereof.
(fe) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(gf) The Company shall deliver promptly not permit any securities other than the Warrant Shares to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 7.3 hereof, or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply be or remain effective during the effectiveness of a registration statement (except any registration statement filed in accordance with applicable securities laws or rules of the National Association of Securities DealersSection 7.2 hereof) filed pursuant to Section 7.3 hereof, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers and independent auditors, Warrant Shares representing a Majority of such securities then outstanding (assuming an exercise of all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestthen outstanding Warrants).
(hg) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(jh) The Company shall promptly notify as soon as practicable after the Underwriter effective date of a registration statement relating to any Warrant Shares pursuant to Sections 7.2 or 7.3 hereof, and each Holder in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(i) The Company shall deliver promptly to each Holder participating in an offering including any Warrant Shares pursuant to Sections 7.2 or 7.3 hereof, who so requests and to the managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Company's discovery that, or upon the happening of any event registration statement as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or it deems reasonably necessary to make the statements therein not misleading in the light comply with applicable securities laws or rules of the circumstances under which they were madeNational Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and upon receipt properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such notice the Underwriter reasonable extent and each at such reasonable times and as often as any such Holder shall not effect any sale of reasonably request as it deems necessary to comply with applicable securities and shall immediately cease utilizing laws or distributing such prospectus. At the request of the Underwriter or any such HolderNASD rules.
(j) With respect to a registration pursuant to Section 7.3 hereof, the Company shall promptly prepare and furnish enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting. Such managing underwriter(s) shall be satisfactory to the Underwriter or such Company and each Holder and such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, if anyat their option, a reasonable number require that any or all the representations, warranties and covenants of copies of a supplement the Company to or an amendment for the benefit of such prospectus as may underwriters shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement of a material fact or omit to state a material fact be required to be stated therein make any representations or necessary warranties to make or agreements with the statements therein not misleading in Company or the light underwriters except as they may relate to such Holders and their intended methods of the circumstances under which they were madedistribution.
(kl) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Shares, shall mean in excess of fifty percent (50%) percent of the then outstanding Underwriter's Warrants and Underwriter's or Warrant Shares that (i) are not held by the Company, an affiliate (excluding the Agent and any affiliate of the Agent), officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Warrant Agreement (Zymetx Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best best-efforts to file a registration statement within forty-five (45) calendar days of receipt of any demand therefor pursuant to section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in accordance with Section 7.1a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall use its best best-efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all any registration statements statement filed pursuant to Sections 7.1 7(b) and 7.2 7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47(d), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual incidental and special damages (which may include and damages due to a loss of profit)profit sustained by the Holders requesting registration of their Registrable Securities.
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 8 of the Underwriting Agreement Agreement, and the Holders shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the Underwriter have agreed to indemnify the Company contained in Section 6 8 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Securities Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants (or the Underwriter's Warrants purchasable upon exercise thereof) prior to the initial filing of any registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Registrable Securities in any registration statement filed pursuant to Section 7(b) hereof without the prior written consent of the Holders of a Majority of the Registrable Securities.
(8) The Company shall furnish to a designated Underwriter of the Holders participating in the offering and to each Underwriter, if any, a signed counterpart, addressed to such Holder or Underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration relates to an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration relates to an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement (the "Accountants"), in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' "cold comfort" letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in "cold comfort" letters, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in "cold comfort" letters delivered to Underwriter in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective date of the registration statement make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Securities Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities each Holder participating in the offering requesting the correspondence described below and any managing Underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff Accountants with respect to the registration statement and permit the each Holder and Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditorsaccountants, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other such Holder of the Registrable Securities shall reasonably request.
(h11) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall use its best-efforts to enter into an underwriting agreement with one or more underwriters the managing underwriter selected for such underwriting by Holders holding a Majority of the Registrable Securities requested to be included in such underwriting; provided, however, that (i) such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter, and (ii) the Holders shall be responsible for any selling fees or commissions in connection with such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter a Majority of such Holders and each other Holder of the Registrable Securitiessuch managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwritersmanaging underwriter. If required by the underwriters, the Underwriter and the other The Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, underwriter shall also be made to and for the benefit of the Underwriter and the other such Holders. Such Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters underwriter except as they may relate to the Underwriter and the other such Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 Sections 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If The Holder(s) whose Warrant Securities are the Company shall fail subject of such registration statement will pay all costs, fees and expenses in connection with any registration statement filed pursuant to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit7.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 7.3 hereof, or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws be or rules remain effective during the effectiveness of the National Association of Securities Dealersa registration statement filed pursuant to Section 7.3 hereof, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditors, all to Warrant Securities representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestsecurities.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities covered requested to be included in such underwriting, which may be the Representative. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriter(s) shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriter(s) except as they may relate to such Holders and their intended methods of distribution.
(l) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Actincluding without limitation restricted shares of Common Stock, upon the Company's discovery thatoptions, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter warrants or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number other securities convertible into shares of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madeCommon Stock.
(km) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Representative's Warrant Agreement (Commodore Separation Technologies Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five (45) days of receipt of any demand therefor in accordance with Section 7.1, shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 and 7.2 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(e) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Underwriter's Unit Warrant Agreement (Flight Safety Technologies Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 (h) or 7.2 (i) hereof, the Company covenants and agrees as follows:
(ai) The Company shall use its best efforts to file a registration statement within forty-five sixty (4560) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Stock such number of prospectuses as shall reasonably be requested.
(bii) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 (h), (i) and 7.2 0) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4(j)(i), the Company shall, in addition to any other equitable or other relief available to the Underwriter and Holder(s), extend the other Holders, be liable for any or all actual damages (which may include damages due to a loss Exercise Period by such number of profit)days as shall equal the delay caused by the Company's failure.
(ciii) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Stock included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(div) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Stock to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), from and against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(ev) The Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Stock to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(fvi) Nothing contained in this Agreement The Holder(s) shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(gvii) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Stock to be included in any registration statement filed pursuant to Section (i) hereof, or permit any other registration statement to be or remain effective during the Underwriter and all effectiveness of a registration statement filed pursuant to Section (i) hereof, other Holders than a secondary offering of the Registrable Securities participating in the offering copies of all correspondence between the Commission and equity securities by the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditors, Warrant Stock representing a Majority of such securities (assuming an exercise of all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of Warrants underlying the Registrable Securities shall reasonably requestWarrants).
(hviii) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (ix) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (iiy) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(jix) The Company shall promptly notify as soon as practicable after the Underwriter and each Holder effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Act, upon ) an earnings statement (which need not be audited) complying with Section 11(a) of the Company's discovery that, or upon Act and covering a period of at least 12 consecutive months beginning after the happening effective date of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(kx) The Company shall deliver promptly to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request.
(xi) The Company shall enter into an underwriting agreement with the managing underwriters, which may be the Underwriter. Such agreement shall be satisfactory in form and substance to the Company, and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter; provided however, that no Holder shall be required to make any representations, warranties or covenants or grant any indemnity to which it shall object in any such underwriting agreement. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(xii) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Stock, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares or Warrant Stock that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 9.2 or 7.2 9.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five ninety (4590) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts and to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Warrant Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested. The Company shall also file such applications and other documents as may be necessary to permit the sale of the Warrant Shares to the public during the Registration Period in those states to which the Company and the holders of the Warrants and/or Warrant Shares shall mutually agree.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 9.2 and 7.2 9.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply The Holder(s) will pay all costs, fees and expenses in connection with the provisions of registration statement filed pursuant to Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit9.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders Holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and statement.
(e) In order to provide for just and equitable contribution as set forth under the Act in Section 6 any case in which (i) any Holder of the Underwriting Warrant Shares or controlling person thereof makes a claim for indemnification but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that the express provisions of Section 9.4(d) hereof provide for indemnification in such case or (ii) contribution under the Act may be required on the part of any Holder of the Warrant Shares, or controlling person thereof, then the Company, any such Holder of the Warrant Shares, or controlling person thereof shall contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (which shall, for all purposes of this Agreement, include, but not be limited to, all costs of defense and investigation and all attorneys fees), in either such case (after contribution from others) on the basis of relative fault as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or a Holder of Warrant Shares, or controlling person thereof on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and such Holders of such securities and such controlling persons agree that it would not be just and equitable if contribution pursuant to this Section 10.4(e) were determined by pro rata allocation or by any other method which does not take account of the equitable considerations referred to in this Section 9.4(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 9.4(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(ef) The Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all any loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished in writing, by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementstatement.
(fg) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(gh) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Shares to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 10.3 hereof, or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary (other than a registration statement on Form S-4 or S-8) to comply with applicable securities laws be or rules remain effective during a ninety (90) day period following the effective date of the National Association of Securities Dealersa registration statement filed pursuant to Section 9.3 hereof, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holder(s) of the Company with its officers Warrants and independent auditors, all to Warrant Shares representing a Majority of such reasonable extent and at such reasonable times and securities or as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If otherwise required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance terms of any existing registration rights granted prior to the Company, the Underwriter and each other Holder date of the Registrable Securities, and shall contain such representations, warranties and covenants this Agreement by the Company and such other terms as are customarily contained in agreements to the holders of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders any of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distributionCompany's securities.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the The Company shall furnish, or cause furnish to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a "cold comfort" letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify enter into an underwriting agreement with the Underwriter and each Holder managing underwriters selected for such underwriting by Holders holding a Majority of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required Warrant Shares requested to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statementunderwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as then are customarily contained in effectagreements of that type used by the managing underwriter. The Holder(s) shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, includes an untrue statement at their option, require that any or all of a material fact the representations, warranties and covenants of the Company to or omits for the benefit of such underwriters shall also be made to state any material fact and for the benefit of such Holder(s). Such Holder(s) shall not be required to be stated therein make any representations or necessary warranties to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, agreements with the Company shall promptly prepare or the underwriters except as they may relate to such Holder(s) and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number their intended methods of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madedistribution.
(k) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Shares, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's or Warrant Shares that (i) are not held by the Company, or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act or Rule 144 promulgated under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Subject to Section 7.3, the Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable timeas soon as reasonably practicable, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees (not to exceed $35,000) and expenses. If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, Holder(s) be liable for any or all actual damages (which may include damages due to a loss sustained by the Holder(s) requesting registration of profit)their Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to (i) execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdictionjurisdiction and (ii) "blue sky" Securities only in those states where the Company's initial public offering was registered under the state securities or blue sky laws.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors directors, and its counsel and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly furnish to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(h) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(i) The Company shall deliver promptly to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request. Prior to any such investigation, a Holder shall execute a confidentiality agreement with the Company.
(j) The Company shall promptly notify enter into an underwriting agreement with the Underwriter and each Holder managing underwriters selected for such underwriting by Holders holding a Majority of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required requested to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statementunderwriting, which may be the Representative. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as then are customarily contained in effectagreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Securities and may, includes an untrue statement at their option, require that any or all the representations, warranties and covenants of a material fact the Company to or omits for the benefit of such underwriters shall also be made to state any material fact and for the benefit of such Holders. Such Holders shall not be required to be stated therein make any representations or necessary warranties to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, agreements with the Company shall promptly prepare or the underwriters except as they may relate to such Holders and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number their intended methods of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madedistribution.
(k) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, UnderwriterRepresentative's Warrants or the Common Shares underlying the Underwriter's WarrantsSecurities, shall mean in excess of fifty percent (50%) of the then outstanding UnderwriterRepresentative's Warrants or Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Representative's Warrant Agreement (Translation Group LTD)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with pursuant to Section 7.17.3, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding transfer taxes, if any, and fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c). If the Company shall fail to comply with the provisions of Section 7.47.5(a), the Company shall, in addition to any other equitable or other damages or relief available to the Underwriter and the other HoldersHolder(s), be liable for any or and all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the 1934 Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(e) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement but only to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter Company has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementUnderwriters.
(fe) Nothing contained in this Agreement The Company shall be construed as requiring not require the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(gf) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities filed pursuant to do such investigationSection 7.3(a) hereof, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestRepresentative.
(hg) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder Representative on behalf of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each the managing underwriter, if any, a signed counterpart, addressed to the Underwriter, such Representative on behalf on each Holder or and to the managing underwriter, of if any, (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated there is no managing underwriter or the date of the closing under the underwriting agreement)agreement if there is a managing underwriter, and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated and the date of the closing under the underwriting agreement)agreement if there is a managing underwriter, signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(jh) The Company shall promptly notify as soon as practicable after the Underwriter and each Holder effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Securities Act, upon ) an earnings statement (which need not be audited) complying with Section 11(a) of the Company's discovery that, or upon Securities Act and covering a period of at least 12 consecutive months beginning after the happening effective date of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits .
(i) The Company shall deliver promptly to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities who so requests and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each managing underwriter, if any, a reasonable number of copies of a supplement all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or an amendment of its staff with respect to any registration statement filed pursuant to this Agreement, and permit each Holder who so requests and the managing underwriter, if any, to do such prospectus investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or it deems reasonably necessary to make the statements therein not misleading in the light comply with applicable securities laws or rules of the circumstances under which they were madeNational Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as each Holder and the managing underwriter, if any, shall reasonably request.
(kj) For purposes of this Agreement, the term "majority" in reference With respect to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed pursuant to Section 7.3, the Company shall enter into an underwriting agreement with the Commission under managing underwriter, reasonably satisfactory to the ActCompany, selected for such underwriting by Holders holding a majority of the Warrant Securities requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
Appears in 1 contract
Sources: Warrant Agreement (Source Information Management Co)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 Sections 9.2 or 7.2 9.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five ninety (4590) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts and to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Warrant Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requestedrequested and shall maintain the effectiveness of such registration statement for a period of at least twelve (12) months. Notwithstanding the foregoing sentence, the Company shall be entitled one time only to postpone the filing of any registration statement otherwise required to be prepared and filed by it pursuant to this Section 9.4(a) if the Company is (i) publicly committed to a self-tender or exchange offer and the filing of a registration statement would cause a violation of Regulation M under the Securities Exchange Act of 1934, as amended (the "Exchange Act") or (ii) involved in negotiating or consummating an acquisition or merger which would make such registration impracticable, in either of which cases the filing of the registration statement may be delayed for a period of up to 60 days. The Company shall promptly deliver to the Holders a written notice of postponement, which notice shall specifically set forth the reason for such postponement. Following the delivery of such notice, the Company shall be required to file the postponed registration statement upon the earlier of (i) the consummation or termination, as applicable, of the event requiring such postponement (ii) 60 days after delivery of the aforementioned notice.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions, and excluding roadshow expenses if the only shares to be registered in such Registration Statement are Warrant Shares), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 9.2 and 7.2 9.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If The Holder(s) will pay all costs, fees and expenses (including those of the Company shall fail to comply Company)in connection with the provisions of registration statement filed pursuant to Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit9.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders of Holder(s)of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against all loss, claim, damage, expense or liability (including liability(including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished in writing by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and not permit the Underwriter and inclusion of any securities other than the other Holders of the Registrable Securities Warrant Shares to do such investigation, upon reasonable advance notice, with respect to information contained be included in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 9.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 9.3 hereof (other than registration statements filed prior to an exercise of registration rights by a Holder of Underwriter's Warrants and/or Warrant Shares pursuant to Section 9.2 hereof), without the prior written consent of ▇▇▇▇▇▇▇▇ or as otherwise required by the terms of any existing registration rights granted prior to the date of this Agreement by the Company to the holders of any of the Company's securities.
(h) In the event of an underwritten offering, the Company shall furnish, or cause furnish to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, underwriter a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall promptly notify enter into an underwriting agreement with the Underwriter and each Holder managing underwriters (in the case of registration rights exercised pursuant to Section 9.3 hereof, selected for such underwriting by Holders holding a Majority of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required Warrant Shares requested to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statementunderwriting, which may be the Representative). Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as then are customarily contained in effectagreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, includes an untrue statement at their option, require that any or all the representations, warranties and covenants of a material fact the Company to or omits for the benefit of such underwriters shall also be made to state any material fact and for the benefit of such Holders. Such Holders shall not be required to be stated therein make any representations or necessary warranties to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, agreements with the Company shall promptly prepare or the underwriters except as they may relate to such Holders and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number their intended methods of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madedistribution.
(k) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Warrant Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's or Warrant Shares that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Underwriter's Warrant Agreement (Art Renaissance Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five (45) 45 days of receipt of any demand therefor in accordance connection with any registration under Section 7.17.3, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, expenses and blue sky fees and expenses. The Holder(s) shall pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c) hereof. If the Company shall fail to comply with the provisions of its obligations under Section 7.47.4(a), the Company shall, in addition Holder(s) shall be entitled to any other seek equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profitHolder(s).
(c) The Company will shall take all necessary action which that may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify and hold harmless the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders Holder(s) within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), from and against any and all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoeverwhatsoever including, without limitation, the fees and expenses of legal counsel) to which any of them may become subject under the Securities Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions contained in Section 7(a) of the Underwriting Agreement pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 each of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementUnderwriters.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, Company and its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the 1934 Exchange Act, from and against any and all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoeverwhatsoever including, without limitation, the fees and expenses of legal counsel) to which they may become subject under the Securities Act, the 1934 Exchange Act or otherwise, arising from information furnished in writing by or on behalf of such Holders, Holders or their successors or assigns, specifically for specific inclusion in such registration statement statement, but only to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement provision pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth contained in Section 6 7(b) of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the UnderwriterRepresentative's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section 7.3 hereof or permit any other registration statement to be or remain effective during the Underwriter and all other Holders effectiveness of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities filed pursuant to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information Section 7.3 hereof without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Representative's Warrants and independent auditors, all to the other Warrant Securities representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestsecurities.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, furnished to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, or if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Securities Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Securities Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or the rules and regulations of the Registrable National Association of Securities covered by such registration statementDealers, at any time when a prospectus relating thereto is required Inc. ("NASD"). Such investigation shall include access to be delivered under books, records and properties and opportunities to discuss the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light business of the circumstances under which they were madeCompany with its officers and independent auditors, all to such reasonable extent and upon receipt of at such notice the Underwriter reasonable times and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or as often as any such HolderHolder or underwriter shall reasonably request.
(k) With respect to a registration under Section 7.3 hereof, the Company shall promptly prepare enter into an underwriting agreement with the underwriters selected for such underwriting by the Holders of a Majority of the Warrant Securities requesting such registration, which may be the Representative. Such agreement shall be reasonably satisfactory in form and furnish substance to the Underwriter or such Company, each Holder and each such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms and conditions as are customarily contained in agreements of the type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, if anyat their option, a reasonable number require that any or all the representations, warranties and covenants of copies of a supplement the Company to or an amendment for the benefit of such prospectus as may underwriters shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement of a material fact or omit to state a material fact be required to be stated therein make any representations or necessary warranties to make or agreements with the statements therein not misleading in Company or the light underwriters except as they may relate to such Holders and their intended methods of the circumstances under which they were madedistribution.
(kl) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) or issuable upon conversion or exercise or in exchange for securities held by such Holder(s) as of the date of filing of such registration statement.
(m) For purposes of this Agreement, the term "majorityMajority" or "66-2/3%" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, UnderwriterRepresentative's Warrants or the Common Shares underlying the Underwriter's Warrantsand/or other Warrant Securities, shall mean in excess of fifty percent (50%) , in the former case, and 66-2/3%, in the latter case, of the shares of Common Stock issued or issuable upon exercise of all then outstanding UnderwriterRepresentative's Warrants and/or Warrant Securities (assuming the exercise of all of the Representative's Warrants) that (i) are not held by the Company, an affiliate, officer, creditor, employee, or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith, and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Actpublic.
Appears in 1 contract
Sources: Representative's Warrant Agreement (Apollo Biopharmaceutics Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 Sections 7.3 and 7.4 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested.registration
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.3 and 7.2 7.4 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47.5(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and Holder(s), extend the exercise period of the Warrants by such number of days as shall equal the delay caused by the Company's failure. addition to any other Holdersequitable or other relief available to the Holder(s), be liable for any or all actual damages (which may include damages due to a loss extend the exercise period of profit)the Warrants by such number of days as shall equal the delay caused by the Company's failure.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, Holder(s); provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.or
(f) Nothing contained in this Agreement shall be construed as requiring For a period of one hundred eighty (180) days after the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing effectiveness of any registration statement filed pursuant to Section 7.4 hereof, the Company shall not permit any other registration statement (other than (1) a registration statement relating to the securities for which the Company has granted demand registration rights, as described in the Prospectus included in the Registration Statement, (2) a registration statement relating to the shares of Common Stock issuable upon exercise of the Redeemable Warrants issued to the public pursuant to the Registration Statement, (3) a registration statement relating to the securities for which the Company has granted piggyback registration rights, as described in the Prospectus included in the Registration Statement and (4) a registration statement filed on Forms S-4 or S-8) to be or remain effective during the effectiveness thereofof a registration statement filed pursuant to Section 7.4 hereof, without the prior written consent of the Holders of the Registrable Securities representing a Majority of such securities.
(g) The Company shall deliver promptly furnish to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to
(h) The Company shall as soon as practicable after the effective date of any registration statement filed pursuant to Sections 7.3 and 7.4 hereof, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(i) The Company shall deliver promptly to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all written correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in underwritten public offerings or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of securitiesthe NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such With respect to any registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such HolderSection 7.4 hereof, the Company shall promptly prepare enter into an underwriting agreement with the managing underwriter selected for such underwriting by the Initiating Holders or the Paying Holders, as the case may be, which may be the Underwriter. Such agreement shall be satisfactory in form and furnish substance to the Underwriter or such Company, each Holder and each such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, if anyat their option, a reasonable number require that any or all the representations, warranties and covenants of copies of a supplement the Company to or an amendment for the benefit of such prospectus as may underwriters shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement of a material fact or omit to state a material fact be required to be stated therein make any representations or necessary warranties to make or agreements with the statements therein not misleading in Company or the light underwriters, except as they may relate to such Holders and their intended methods of the circumstances under which they were madedistribution.
(k) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsRegistrable Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants, Shares, Underlying Warrants and/or shares of Common Stock issued upon exercise of the Underlying Warrants that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Underwriter's Warrant Agreement (Robotic Lasers Inc)
Covenants of the Company With Respect to Registration. In ----------------------------------------------------- connection with any registration registrations under Section 7.1 or 7.2 Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) calendar days of receipt of any demand therefor pursuant to Section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in accordance with Section 7.1a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Underwriters' Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all any registration statements statement filed pursuant to Sections 7.1 7(b) and 7.2 7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c3) The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Underwriters' Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders of the Registrable Underwriters' Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended 1934 (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders of the Registrable Underwriters' Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants Underwriters' Warrant prior to the initial filing of any registration statement or the effectiveness thereof, provided that such Holders have made arrangements reasonably satisfactory to the Company to pay the exercise price from the proceeds of such offering.
(g7) The Company shall furnish to each Underwriter for the offering, if any, such documents as such Underwriter may reasonably require.
(8) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(9) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities each Holder participating in the offering requesting the correspondence described below and any managing Underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the each Holder and Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other such Holder of the Registrable Securities shall reasonably request.
(h10) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters the managing underwriter selected for such underwriting by Holders holding a Majority of the Underwriters' Securities requested to be included in such underwriting, provided, however that such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter or underwriters. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter a Majority of such Holders (in respect of a registration under Section 7(b) only) and each other Holder of the Registrable Securitiessuch managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriterstype. If required by the underwriters, the Underwriter and the other The Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Underwriters' Securities. The Underwriter and the other Such Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other such Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Underwriter's Warrant Agreement (Vertical Health Solutions Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five _________ (45____) days of receipt of any demand therefor in accordance with pursuant to Section 7.17.3, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding transfer taxes, if any, and fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 73(c). If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other damages or relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(e) The Underwriter and all other Holders of Company shall not require the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(aHolder(s) of the 1934 Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(gf) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities filed pursuant to do such investigationSection 7.3(a) hereof, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss Holders of Warrants and/or Warrant Securities representing more than _____% of such securities at that time outstanding (assuming the business exercise of all of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestWarrants).
(hg) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder Representative on behalf of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each the managing underwriter, if any, a signed counterpart, addressed to the Underwriter, Representative on behalf of each such Holder or and to the managing underwriter, if any, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated there is no managing underwriter or the date of the closing under the underwriting agreement)agreement if there is a managing underwriter, and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated and the date of the closing under the underwriting agreement)agreement if there is a managing underwriter, signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(jh) The Company shall promptly notify as soon as practicable after the Underwriter and each Holder effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Securities Act, upon ) an earnings statement (which need not be audited) complying with Section 11 (a) of the Company's discovery that, or upon Securities Act and covering a period of at least 12 consecutive months beginning after the happening effective date of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits .
(i) The Company shall deliver promptly to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities who so requests and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each managing underwriter, if any, a reasonable number of copies of a supplement all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or an amendment of its staff with respect to any registration statement filed pursuant to this Agreement, and permit each Holder who so requests and the managing underwriter to do such prospectus investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or it deems reasonably necessary to make the statements therein not misleading in the light comply with applicable securities laws or rules of the circumstances under which they were madeNational Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as each Holder and the managing underwriter shall reasonably request.
(kj) For purposes of this Agreement, the term "majority" in reference With respect to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed pursuant to Section 7.3, -the Company shall enter into an underwriting agreement with the Commission under managing underwriter selected for such underwriting by Holders holding a majority of the ActWarrant Securities requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
Appears in 1 contract
Sources: Warrant Agreement (Chipcards Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 9.2 or 7.2 9.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five ninety (4590) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts and to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Warrant Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as shall reasonably be requested. The Company shall also file such applications and other documents as may be necessary to permit the sale of the Warrant Shares to the public during the Registration Period in those states to which the Company and the holders of the Warrants and/or Warrant Shares shall mutually agree.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 9.2 and 7.2 9.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply The Holder(s) will pay all costs, fees and expenses in connection with the provisions of registration statement filed pursuant to Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit9.3(c).. 62
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders Holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and statement.
(e) In order to provide for just and equitable contribution as set forth under the Act in Section 6 any case in which (i) any Holder of the Underwriting Warrant Shares or controlling person thereof makes a claim for indemnification but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that the express provisions of Section 9.4(d) hereof provide for indemnification in such case or (ii) contribution under the Act may be required on the part of any Holder of the Warrant Shares, or controlling person thereof, then the Company, any such Holder of the Warrant Shares, or controlling person thereof shall contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (which shall, for all purposes of this Agreement, include, but not be limited to, all costs of defense and investigation and all attorneys fees), in either such case (after contribution from others) on the basis of relative fault as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or a Holder of Warrant Shares, or controlling person thereof on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and such Holders of such securities and such controlling persons agree that it would not be just and equitable if contribution pursuant to this Section 9.4(e) were determined by pro rata allocation or by any other method which does not take account of the equitable considerations referred to in this Section 9.4(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 9.4(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(ef) The Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all any loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished in writing, by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementstatement.
(fg) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(gh) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Shares to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 9.3 hereof, or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary (other than a registration statement on Form S-4 or S-8) to comply with applicable securities laws be or rules remain effective during a one hundred and eighty (180) day period following the effective date of the National Association of Securities Dealersa registration statement filed pursuant to Section 9.3 hereof, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holder(s) of the Company with its officers Warrants and independent auditors, all to Warrant Shares representing a Majority of such reasonable extent and at such reasonable times and securities or as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If otherwise required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance terms of any existing registration rights granted prior to the Company, the Underwriter and each other Holder date of the Registrable Securities, and shall contain such representations, warranties and covenants this Agreement by the Company and such other terms as are customarily contained in agreements to the holders of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders any of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distributionCompany's securities.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the The Company shall furnish, or cause furnish to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a "cold comfort" letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify as soon as practicable after the Underwriter and each Holder effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Act, upon ) an earnings statement (which need not be audited) complying with Section 11(a) of the Company's discovery that, or upon Act and covering a period of at least 12 consecutive months beginning after the happening effective date of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company 66 and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holder(s) shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holder(s). Such Holder(s) shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holder(s) and their intended methods of distribution.
(l) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Shares, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's or Warrant Shares that (i) are not held by the Company, or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act or Rule 144 promulgated under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 (8) or 7.2 (9) hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 (h), (i) and 7.2 (j) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4(10)(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and Holder(s), extend the other Holders, be liable for any or all actual damages (which may include damages due to a loss Exercise Period by such number of profit)days as shall equal the delay caused by the Company's failure.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), from and against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 7 of the Underwriting Agreement and relating to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementoffering.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to The Holder(s) may exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section (9) hereof, or permit any other registration statement to be or remain effective during the Underwriter and all effectiveness of a registration statement filed pursuant to Section (9) hereof, other Holders than a secondary offering of the Registrable Securities participating in the offering copies equity securities of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditors, all to Warrant Securities representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.securities
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (ix) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (iiy) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable National Association of Securities covered by such registration statementDealers, at any time when a prospectus relating thereto is required Inc. ("NASD") or an Exchange. Such investigation shall include access to be delivered under books, records and properties and opportunities to discuss the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light business of the circumstances under which they were madeCompany with its officers and independent auditors, all to such reasonable extent and upon receipt of at such notice the Underwriter reasonable times and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or as often as any such Holder, the Company Holder or underwriter shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madereasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters, which may be the Underwriter. Such agreement shall be satisfactory in form and substance to the Company, and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter; provided however, that no Holder shall be required to make any representations, warranties or covenants or grant any indemnity to which it shall object in any such underwriting agreement. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(l) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 Sections 7.3 and 7.4 hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five sixty (4560) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.3 and 7.2 7.4 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47.5(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and Holder(s), extend the other Holders, be liable for any or all actual damages (which may include damages due to a loss exercise period of profit)the Underwriter's Warrants by such number of days as shall equal the delay caused by the Company's failure.
(c3) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, Holder(s); provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.such
(d4) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 ActEXCHANGE ACT"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders Holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing For a period of any registration statement or one hundred eighty (180) days after the effectiveness thereof.
(g) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 7.4 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in not permit any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such other registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and other than (ii1) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with relating to the Commission under the Act.securities for which
Appears in 1 contract
Sources: Underwriter's Warrant Agreement (United States Financial Group Inc /Ny)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c). If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental or special damages (which may include damages due to a loss sustained by the Holder(s) requesting registration of profit)their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such HoldersHolder, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 7.3 hereof, or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws be or rules remain effective during the effectiveness of the National Association of Securities Dealersa registration statement filed pursuant to Section 7.3 hereof, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Warrants and Warrant Securities shall reasonably requestrepresenting a Majority of such securities.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(ji) The Company shall promptly notify as soon as practicable after the Underwriter and each Holder effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.event
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement on appropriate form within forty-five (45) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any than underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 and 7.2 7.2(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expensesexpenses and the fees and expenses of one counsel for all of the holders. The holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.2(c). If the Company shall fail to comply with the provisions of Section 7.47.3(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter holder(s), extend the Exercise Period by such number of days as shall equal the delay caused by the Company's failure, and the other Holders, be liable for any or all actual damages (which as the holder(s) may include damages due be entitled to as a loss matter of profit)law.
(c) The Company will take all necessary action which may be required use its best efforts, in cooperation with counsel to the underwriters, in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter holder(s) shall designate and to keep such qualifications or registrations in effect for so long as the other Holders, registration statement is in effect; provided that the Company shall not be obligated to execute qualify to do business in any such jurisdiction or to file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of in any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all jurisdiction in any action other Holders than one arising out of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(e) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants offering or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder sale of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration registrations under Section 7.1 or 7.2 Sections 7(a) and 7(b) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five (45) calendar days of receipt of any demand therefor pursuant to section 7(a); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in accordance with Section 7.1, a report on Form 20-F. The Company shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all any registration statements statement filed pursuant to Sections 7.1 7(a) and 7.2 7(b) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47(c), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual incidental and special damages (which may include and damages due to a loss of profit)profit sustained by the Holders requesting registration of their Registrable Securities.
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Underwriters contained in Section 5 8 of the Underwriting Agreement Agreement, and the Holders shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the Underwriters have agreed to indemnify the Company contained in Section 6 8 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Securities Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Stock Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Registrable Securities in any registration statement filed pursuant to Section 7(a) hereof without the prior written consent of the Holders of a Majority of the Registrable Securities.
(8) The Company shall furnish to a designated representative of the Holders participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration relates to an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration relates to an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement (the "Accountants"), in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' "cold comfort" letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in "cold comfort" letters, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in "cold comfort" letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective date of the registration statement make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Securities Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff Accountants with respect to the registration statement and permit the Underwriter each Holder and the other Holders of the Registrable Securities underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditorsrepresentatives of the Accountants, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other such Holder of the Registrable Securities shall reasonably request.
(h11) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters the managing underwriter selected for such underwriting by Holders holding a Majority of the Registrable Securities requested to be included in such underwriting; provided, however, that (i) such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter, and (ii) the Holders shall be responsible for any selling fees or commissions in connection with such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter a Majority of such Holders and each other Holder of the Registrable Securitiessuch managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwritersmanaging underwriter. If required by the underwriters, the Underwriter and the other The Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, shall also be made to and for the benefit of the Underwriter and the other such Holders. Such Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other such Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Underwriters' Warrant Agreement (Med Emerg International Inc)
Covenants of the Company With Respect to Registration. In connection with any registration registrations under Section 7.1 or 7.2 Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five (45) calendar days of receipt of any demand therefor pursuant to Section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in accordance with Section 7.1a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Underwriters' Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all the first registration statements statement filed pursuant to Sections 7.1 7(b) and 7.2 7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c3) The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Underwriters' Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders of the Registrable Underwriters' Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders of the Registrable Underwriters' Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Underwriters' Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Underwriters' Securities in any registration statement filed pursuant to Section 7(b) hereof without the prior written consent, which consent shall not be unreasonably withheld, of the Holders of the Underwriters' Warrants and Underwriters' Securities representing a Majority of such securities (assuming exercise of all of the Underwriters' Warrants). Except that the Company may include the 220,000 shares registered on behalf of certain individuals included in the Registration Statement without the consent of the Representative.
(8) The Company shall furnish to a designated representative of the Holders participating in the offering and to each underwriter, if any, a signed counterpart, addressed to the Company or the underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) if such registration includes an underwritten public offering a copy of the "cold comfort" letter dated the effective date of such registration statement signed by each independent public accountant who has issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letters, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter each Holder and the other Holders of the Registrable Securities underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other such Holder of the Registrable Securities shall reasonably request.
(h11) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters the managing underwriter selected for such underwriting by Holders holding a Majority of the Underwriters' Securities requested to be included in such underwriting, provided, however that (i) such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter or underwriters, and (ii) the Holders shall be responsible for any selling fees or commissions in connection with such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter a Majority of such Holders (in respect of a registration under Section 7(b) only) and each other Holder of the Registrable Securitiessuch managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwritersmanaging underwriter. If required by the underwriters, the Underwriter and the other The Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Underwriters' Securities and may, at their option, require that any or all the representations representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, shall also be made to and for the benefit of the Underwriter and the other such Holders. Such Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other such Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Underwriters' Warrant Agreement (Community Care Services Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 hereof, the The Company covenants and agrees as follows:
(a) The In connection with any registration under Section 7.4 hereof, the Company shall use its best efforts to file a registration statement within forty-five the Registration Statement as expeditiously as possible, but in any event no later than twenty (4520) days of following receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement such Registration Statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result holder of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs costs, fees and expenses (excluding other than underwriting fees, discounts and nonaccountable expense allowance applicable to the Registrable Securities and the fees and expenses of counsel retained by the Underwriter's and the other Holders' counsel and any underwriting or selling commissions), fees and expenses holders of Registrable Securities) in connection with all registration statements Registration Statements filed pursuant to Sections 7.1 7.3 and 7.2 7.4(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement the Registration Statement for offering and sale under the securities or blue sky laws of such states as are reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service holders of process or to qualify as a foreign corporation to do business under the laws of any such jurisdictionsecurities.
(d) The Company shall indemnify the Underwriter and all other Holders any holder of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.Registration
(e) The Underwriter and all other Holders Any holder of the Registrable Securities to be sold pursuant to a registration statement, and their such Holder's successors and assigns, shall severally, and not jointly, indemnify indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holdersholder, or their such Holder's successors or assigns, for specific inclusion in such registration statement Registration Statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders any Holder to exercise their Underwriter's Unit his Warrants or the Underwriter's Underlying Warrants held by such Holder prior to the initial filing of any registration statement or the effectiveness thereof.
(g) If the Company shall fail to comply with the provisions of this Article 7, the Company shall, in addition to any other equitable or other relief available to the holders of Registrable Securities, be liable for any or all incidental, special and consequential damages sustained by the holders of Registrable Securities, requesting registration of their Registrable Securities.
(h) The Company shall promptly deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each holder of Registrable Securities included for such registration statement in such Registration Statement pursuant to Section 7.3 hereof or Section 7.4 hereof requesting such correspondence and permit memoranda and to the Underwriter and the other Holders managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each holder of Registrable Securities and such underwriter to do such reasonable investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder such holder of the Registrable Securities or underwriter shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five ninety (4590) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested; provided, however, that the Company shall not be required to conduct an audit or prepare audited financial statements outside its normal cycle and compliance with the request shall be delayed until such time as the Company is otherwise required by law to complete its audit and prepare such financial statements.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.1(b), 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, expenses and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental or special damages (which may include damages due to a loss sustained by the Holder(s) requesting registration of profit)their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by a majority in interest of the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7(a) of the Underwriting Agreement, except that the representation set forth in the last clause of Section (1)(s) thereunder shall not be required.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such HoldersHolder, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7(b) of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly furnish to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(jh) The Company shall promptly notify as soon as practicable after the Underwriter and each Holder effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(i) The Company shall deliver promptly to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, upon copies of all correspondence between the Commission and the Company and between the Commission and the Company's discovery thatcounsel or auditors and all reasonable memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or upon omitted from the happening registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request.
(j) Unless the Company chooses to effect a required registration hereunder on Form S-3, in the event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances demand for registration under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holderparagraph 7.3(a), the Company shall promptly prepare enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting, which may be the Underwriter. Such agreement shall be satisfactory in form and furnish substance to the Underwriter Company, each Holder and such managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holder shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriter shall also be made to and for the benefit of such Holder. Such Holder shall not be required to make any representations or warranties to or agreements with the Company or the underwriter except as they may relate to such Holder and each underwriter, if any, a reasonable number their intended methods of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madedistribution.
(k) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean a percentage in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants Warrant Securities (treating all such securities as fully exercised for Shares for purposes of such calculation) that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Underwriter's Warrant Agreement (Omnicorder Technologies Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The In connection with any registration under Section 7.3 hereof, the Company shall use its best efforts to file a registration statement within forty-five as expeditiously as possible, but in any event no later than sixty (4560) days of following receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested; provided, however, that the obligations under this Section 7.4(a) are contingent upon the holders of the Registrable Securities otherwise complying with their obligations under this Agreement.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' Holder(s) counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement statement, for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders any holders of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of Placement Agent as provided by the Underwriting Placement Agency Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementdated May 18, 2000.
(e) The Underwriter and all other Holders Any Holder of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holdersholders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 Paragraph 12 of the Underwriting Placement Agency Agreement pursuant to which the Underwriter Placement Agent has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders any holder to exercise their Underwriter's Unit Warrants or the Underwriter's its Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly use its best efforts not to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the inclusion of any securities other Holders of than the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained be included in or omitted from the any registration statement as it deems reasonably necessary filed pursuant to comply with applicable securities laws Section 7.3 hereof, or rules permit any other registration statement to be or remain effective during the effectiveness of the National Association of Securities Dealersa registration statement filed pursuant to Section 7.3 hereof, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale representing a majority of their Registrable Securities and may, at their option, require that any or all such securities. In the representations and warranties of event the Company is required to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the include securities other Holders of the Registrable Securities. The Underwriter and the other Holders of than the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any in a registration statement filed pursuant to under Section 7 hereof7.3, the Holders shall be entitled to one additional right to demand the preparation and filing of a registration under Section 7.3
(h) The Company shall furnish, or cause furnish to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company as soon as practicable, but in any event not later than 45 days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Placement Agent, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and the managing underwriters copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable National Association of Securities covered by such registration statementDealers, at any time when a prospectus relating thereto is required Inc. ("NASD"). Such investigation shall include access to be delivered under books, records and properties and opportunities to discuss the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light business of the circumstances under which they were madeCompany with its officers and independent auditors, all to such reasonable extent and upon receipt of at such notice the Underwriter reasonable times and each as often as any such Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madereasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(1) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Placement Agent's Unit Purchase Warrant Agreement (Sanguine Corp)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its commercially reasonable best efforts to file a registration statement within forty-five (45) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its commercially reasonable best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting or selling commissionscommissions or other charges of any broker-dealer or any attorney or other person acting on behalf of Holder), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder, be liable for any or and all actual loss of direct profit damages (which may include damages sustained by the Holder as a result of its inability to sell the Warrant Securities due to a loss of profitsuch failure (but excluding any indirect or consequential damages).
(c) The Company will take all necessary action which may be reasonably required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such the states as reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdictionHolder.
(d) The Company shall indemnify the Underwriter and all other Holders Holder of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(e) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.of
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental or special damages (which may include damages due to a loss sustained by the Holder(s) requesting registration of profit)their Warrant Securities, excluding consequential damages.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement. The Company further agree(s) that upon demand by an indemnified person, at any time or from time to time, it will promptly reimburse such indemnified person for any loss, claim, damage, liability, cost or expense actually and reasonably paid by the indemnified person as to which the Company has indemnified such person pursuant hereto. Notwithstanding the foregoing provisions of this Section 7.4(d) any such payment or reimbursement by the Company of fees, expenses or disbursements incurred by an indemnified person in any proceeding in which a final judgment by a court of competent jurisdiction (after all appeals or the expiration of time to appeal) is entered against the Company or such indemnified person as a direct result of the Holder(s) or such person's gross negligence or willful misfeasance will be promptly repaid to the Company.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.controls
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and filed pursuant to Section 7.3 hereof or permit the Underwriter and the any other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws be or rules remain effective during the effectiveness of the National Association a registration statement filed pursuant to Section 7.3 hereof (other than (i) shelf registrations effectiveness prior thereto and (ii) registrations on Form S-4 of Securities DealersS-8), Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditors, Warrant Securities representing a Majority of such securities (assuming the exercise of all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestWarrants).
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading participating in the light of offering requesting the circumstances under which they were made, correspondence and upon receipt of such notice the Underwriter memoranda described below and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each managing underwriter, if any, a reasonable number of copies of a supplement all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or an amendment of such prospectus as may be necessary so that, as thereafter delivered its staff with respect to the purchasers of registration statement and permit each Holder and underwriter to do such securitiesinvestigation, such prospectus shall not include an untrue upon reasonable advance notice, with respect to information contained in or omitted from the registration statement of a material fact or omit to state a material fact required to be stated therein or as it deems reasonably necessary to make the statements therein not misleading in the light comply with applicable securities laws or rules of the circumstances under which they were madeNASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting, which may be the Representative. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter, and shall contain such
(l) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, including without limitation, restricted shares of Common Stock, options, warrants or any other securities convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, Warrant Securities shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act. 8. Adjustments to Exercise Price and Number of Securities.
Appears in 1 contract
Sources: Representative's Warrant Agreement (All Tech Investment Group Inc Et Al)
Covenants of the Company With Respect to Registration. In connection with any registration registrations under Section 7.1 or 7.2 Sections 6.2 and 6.3 hereof, the Company covenants and agrees as follows:
(a) 6.4.1 The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) calendar days of receipt of any demand therefor pursuant to Section 6.2; PROVIDED, HOWEVER, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in accordance with Section 7.1a report on Form 10-K or Form 10-Q, as the case may be. The Company shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Underwriters' Securities such number of prospectuses as shall reasonably be requested.
(b) 6.4.2 The Company shall pay all costs (excluding fees and expenses of the UnderwriterHolder's and the other Holders' counsel and any underwriting discounts or selling fees, expenses, or commissions), fees and expenses in connection with all any registration statements statement filed pursuant to Sections 7.1 6.2 and 7.2 6.3 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees (if any) and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c) 6.4.3 The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Underwriters' Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, provided PROVIDED that the Company shall not be obligated by reason hereof to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) 6.4.4 The Company shall indemnify the Underwriter and all other Holders of the Registrable Underwriters' Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(e) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.of
Appears in 1 contract
Sources: Underwriters' Warrant Agreement (Infohighway Communications Corp)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.2 and 7.2 7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.any
(e) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and not permit the Underwriter and inclusion of any securities other than the other Holders of the Registrable Warrant Securities to do such investigation, upon reasonable advance notice, with respect to information contained be included in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 7.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof (other than (i) shelf registrations effective prior thereto and (ii) registrations on Form S-4 or S-8), without the prior
(h) The Company shall furnish, or cause furnish to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement)) relating to the due incorporation of the Company, the validity of the shares being issued, the due execution and delivery of the underwriting agreement and Rule 10b-5, and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a "cold comfort" letter dated the effective date of such registration statement and a letter dated the date of the closing under the underwriting agreement), agreement signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Registrable Warrant Securities covered by such registration statement, at any time when a prospectus relating thereto is required requested pursuant to Section 7.3(a) to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statementunderwriting, which may be the Representatives. Such agreement shall be reasonably satisfactory in form and substance to the Company, each Holder and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as then are customarily contained in effectagreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities whether pursuant to Section 7.2 or Section 7.3(a) and may, includes an untrue statement at their option, require that any or all of a material fact the representations, warranties and covenants of the Company to or omits for the benefit of such underwriter(s) shall also be made to state any material fact and for the benefit of such Holders. Such Holders shall not be required to be stated therein make any representations or necessary warranties to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, agreements with the Company shall promptly prepare or the underwriter(s) except as they may relate to such Holders and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number their intended methods of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madedistribution.
(kl) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.the
Appears in 1 contract
Sources: Representatives' Warrant Agreement (Callnow Com Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 (h) or 7.2 (i) hereof, the Company covenants and agrees as follows:
(ai) The Company shall use its best efforts to file a registration statement within forty-five sixty (4560) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested. The Company will deliver the securities within three-days of the effective date or sooner.
(bii) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 (h), (i) and 7.2 (j) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4(j)(i), the Company shall, in addition to any other equitable or other relief available to the Underwriter and Holder(s), extend the other Holders, be liable for any or all actual damages (which may include damages due to a loss Exercise Period by such number of profit)days as shall equal the delay caused by the Company's failure.
(ciii) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(div) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), from and against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 7 of the Underwriting Agreement and relating to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementoffering.
(ev) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(fvi) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to The Holder(s) may exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(gvii) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section (i) hereof, or permit any other registration statement to be or remain effective during the Underwriter and all effectiveness of a registration statement filed pursuant to Section (i) hereof, other Holders than a secondary offering of the Registrable Securities participating in the offering copies equity securities of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditors, Warrant Securities representing a Majority of such securities (assuming an exercise of all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of Warrants underlying the Registrable Securities shall reasonably requestWarrants).
(hviii) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (ix) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (iiy) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(jix) The Company shall promptly notify as soon as practicable after the Underwriter and each Holder effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Act, upon ) an earnings statement (which need not be audited) complying with Section 11(a) of the Company's discovery that, or upon Act and covering a period of at least 12 consecutive months beginning after the happening effective date of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(kx) The Company shall deliver promptly to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD") or an Exchange. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably request.
(xi) The Company shall enter into an underwriting agreement with the managing underwriters, which may be the Underwriter. Such agreement shall be satisfactory in form and substance to the Company, and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter; provided however, that no Holder shall be required to make any representations, warranties or covenants or grant any indemnity to which it shall object in any such underwriting agreement. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(xii) For purposes of this Agreement, the term "majority" Majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the ActAct or pursuant to Rule 144.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five sixty (4560) days of receipt of any demand therefor in accordance with Section 7.1, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other whose securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), are included in such registration statement such number of prospectuses as shall reasonably be requested. Notwithstanding the foregoing sentence, the Company shall be entitled to postpone the filing of any registration statement otherwise required to be prepared and filed by it pursuant to this Section 7.4(a) if (i) the Company is under contract or other binding legal obligation for a material acquisition, reorganization or divestiture, or (ii) the Company is publicly committed to a self-tender or exchange offer and the filing of a registration statement would cause a violation of Regulation M under the Securities Exchange Act of 1934. In the event of such postponement, the Company shall be required to file the registration statement pursuant to this Section 7.4(a) upon the earlier of (i) the consummation or termination, as applicable, of the event requiring such postponement or (ii) 90 days after the receipt of the initial demand for such registration.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' Holder(s) counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 and 7.2 hereof including, without limitation, the Company's ’s legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47.4(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their Representative Units, Representative Shares, Representative Warrants and Warrant Shares underlying the Representative Units.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Representative Shares, Representative Warrants and Warrant Shares underlying the Representative Units included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter Holder(s) of Representative’s Unit Purchase Options, Representative Units, Representative Shares and all other Holders of the Registrable Securities Representative Warrants to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 “Exchange Act"”), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Representative contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter Holder(s) of Representative’s Unit Purchase Options, Representative Units, Representative Shares, Representative Warrants and all other Holders of Warrant Shares underlying the Registrable Securities Representative Units to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter Representative has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Representative’s Unit Warrants Purchase Options or the Underwriter's their Unit Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) If the Representative Units, Representative Shares, Representative Warrants and Warrant Shares underlying the Representative Units are to be sold in an underwritten public offering, the Company shall use its best efforts to furnish to each Holder participating in the offering and to each such underwriter, a signed counterpart, addressed to such underwriter, of (i) an opinion of counsel to the Company dated the date of the closing under the underwriting agreement, and (ii) a “cold comfort” letter dated the date of the closing under the underwriting agreement signed by the independent public accountants who have issued a report on the Company’s financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants’ letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to underwriters in underwritten public offerings of securities.
(h) The Company shall as soon as practicable after the Effective Date of the registration statement, and in any event within 15 months thereafter, have made “generally available to its security holders” (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the Effective Date of the registration statement.
(i) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities each Holder participating in the offering requesting the correspondence and memoranda described below, and the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all Company memoranda (excluding memoranda to and from counsel) relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter each Holder and the other Holders of the Registrable Securities underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("“NASD"”); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other such Holder of the Registrable Securities shall reasonably request.
(hj) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters the managing underwriter(s) selected for such underwriting, if any, which underwriter shall be subject to approval by a Majority of Holders requesting to be included in such underwriting. Such underwriting agreement shall be reasonably satisfactory in form and substance to the Company, the Underwriter each Holder and each other Holder of the Registrable Securitiessuch managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwritersmanaging underwriter(s). If required by the underwriters, the Underwriter and the other The Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities Representative Units, Representative Shares, Representative Warrants and Warrant Shares underlying the Representative’s Units and may, at their option, require that any or all the representations representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, underwriter(s) shall also be made to and for the benefit of the Underwriter and the other such Holders. Such Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters underwriter(s) except as they may relate to the Underwriter and the other Holders of the Registrable Securities and such Holders, their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same except for matters related to disclosures with respect to such registration statement (and the prospectus included therein) andHolders, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is contained or required to be delivered under the Actcontained, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make under the statements therein not misleading in Act and the light of the circumstances under which they were made, rules and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were maderegulations thereunder.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter computation of a “Majority of Holders” shall exclude Representative’s Unit Purchase Options, Representative Units, Representative Shares and the other Holders of the Underwriter's Unit Representative Warrants, Underwriter's Unitsthat are, Underwriter's Sharesat the time of computation, Underwriter's Warrants then subject to a current registration statement or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any each registration under Section 7.1 7.3 or 7.2 7.4 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed flied pursuant to Sections 7.1 7.3 and 7.2 7.4 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail fails to comply with the provisions of Section 7.47.5(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter Holder(s), extend the exercise period of each Representative's Warrant and Underlying Warrant by such number of days as shall equal the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit)delay caused by the Company's failure.
(c) The Company will shall take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s); provided, provided however, that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against any and all losslosses, claimdamages, damagesuits, expense or liability actions, claims, liabilities and expenses (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they or any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which indemnification provided by the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e) The Underwriter and all other Holders Holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against any and all losslosses, claimdamages, damage or expense or liability liabilities, suits, actions, claims, liabilities and expenses (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, Holders or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained indemnification provided by the Underwriters to the Company in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring For a period of one hundred eighty (180) days after the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing effectiveness of any registration statement filed pursuant to Section 7.4 hereof, the Company shall not permit any other registration statement (other than (i) a registration statement relating to the securities for which the Company has granted demand registration rights, as described in the Prospectus included in the Registration Statement, (ii) a registration statement relating to the Shares and the shares issuable upon exercise of the Public Warrants, (iii) a registration statement relating to the securities for which the Company has granted piggyback registration rights, as described in the Prospectus included in the Registration Statement and (iv) a registration statement filed on Forms S-4 or S-8) to be or remain effective during the effectiveness thereofof a registration statement filed pursuant to Section 7.4 hereof, without the prior written consent of the holders of the Registrable Securities representing a Majority of such Securities.
(g) The Company shall deliver promptly furnish to the Underwriter and all other Holders of the Registrable Securities each holder participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the a registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriterunderwriters, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a cold comfort letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included include therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(jh) The Company shall promptly notify as soon as practicable after the Underwriter effective date of any registration statement filed pursuant to Section 7.3 or 7.4 hereof, and each Holder in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered Rule 158 under the Act) an earnings statement (which need not be audited) complying the Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(i) The Company shall deliver promptly to each holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all written correspondence between the Commission and the company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Company's discovery that, or upon the happening of any event registration statement as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or it deems reasonably necessary to make the statements therein not misleading in the light comply with applicable securities laws or rules of the circumstances under which they were madeNASD. Such investigation shall include access to books, records and upon receipt of such notice properties and opportunities to discuss the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request business of the Underwriter or Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holderholder or underwriter shall reasonably request.
(j) With respect to any registration under Section 7.4 hereof, the Company shall promptly prepare enter into an underwriting agreement with the managing underwriter or representative of the underwriters selected for such underwriting by the Initiating Holders or the Paying Holders, as the case may be, which may be the Representative. Such agreement shall be satisfactory in form and furnish substance to the Underwriter Company, each Holder and the Representative or such Holder managing underwriters, as the case may be, and each underwritershall contain such representations, if anywarranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter or the representative, a reasonable number as the case may be. The holders shall be parties to any underwriting agreement relating to an underwritten sale of copies their Registrable Securities and may, at their option, require that any or all the representations, warranties and covenants of a supplement the Company to or an amendment for the benefit of such prospectus as may underwriters shall also be necessary so thatmade to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company, as thereafter delivered the underwriters or their representative, except to the purchasers extent that such representations or warranties relate to such Holders and their intended methods of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madedistribution.
(k) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsRegistrable Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Shares and Underlying Warrants and Underwriter's included in the Units and/or Warrant Shares that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates or family members, persons acting as nominees or in conjunction with any of the foregoing and (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Representative's Warrant (C W Chemica Waste Technologies)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all the first registration statements statement filed pursuant to Sections 7.1 Section 7(b) and 7.2 any registration statement filed pursuant to Section 7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47(d)(1), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their Warrant Securities.
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 8 of the Underwriting Agreement Agreement, and the Holder(s) shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the Underwriter has agreed to indemnify the Company contained in Section 6 8 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g7) The Company shall deliver promptly not be entitled to include any securities other than the Underwriter and all other Holders of the Registrable Warrant Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and permit the Underwriter and the other Holders of the Registrable Securities filed pursuant to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information Section 7(b) hereof without the prior written consent of the Company. Such investigation shall include access to books, records Underwriter and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditors, Warrant Securities representing a Majority of such securities (assuming exercise of all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestWarrants).
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the 8) The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, and if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants accounts who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letter, with respects to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.in
(j9) The Company shall promptly notify as soon as practicable after the Underwriter and each Holder effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly to each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Company's discovery thatregistration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, or upon Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the happening business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any event as such Holder shall reasonably request.
(11) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a result Majority of which, the prospectus Warrant Securities requested to be included in such registration statementunderwriting, as then except that in effect, includes connection with an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make offering for which the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such HolderHolders have piggyback rights, the Company shall promptly prepare have the sole right to select the managing underwriter. Such underwriting agreement shall be satisfactory in form and furnish substance to the Underwriter or such Holder and each underwriter, if anyCompany, a reasonable number Majority of copies such Holders and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of a supplement that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or an amendment for the benefit of such prospectus as may underwriters shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement of a material fact or omit to state a material fact be required to be stated therein make any representations or necessary warranties to make or agreements with the statements therein not misleading in Company or the light underwriters except as they may relate to such Holders and their intended methods of the circumstances under which they were madedistribution.
(k12) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsWarrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction there- with, or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Underwriter's Warrant Agreement (Worldwide Entertainment & Sports Corp)
Covenants of the Company With Respect to Registration. In connection with any registration registrations under Section 7.1 or 7.2 Sections 7(a) and 7(b) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five (45) calendar days of receipt of any demand therefor pursuant to section 7(a); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in accordance with Section 7.1, a report on Form 20-F. The Company shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all any registration statements statement filed pursuant to Sections 7.1 7(a) and 7.2 7(b) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47(c), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual incidental and special damages (which may include and damages due to a loss of profit)profit sustained by the Holders requesting registration of their Registrable Securities.
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 8 of the Underwriting Agreement Agreement, and the Holders shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the Underwriter has agreed to indemnify the Company contained in Section 6 8 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Securities Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants (or the Underwriter's Warrants purchasable upon exercise thereof) prior to the initial filing of any registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Registrable Securities in any registration statement filed pursuant to Section 7(a) hereof without the prior written consent of the Holders of a Majority of the Registrable Securities.
(8) The Company shall furnish to a designated representative of the Holders participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration relates to an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration relates to an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement (the "Accountants"), in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' "cold comfort" letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in "cold comfort" letters, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in "cold comfort" letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective date of the registration statement make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Securities Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff Accountants with respect to the registration statement and permit the Underwriter each Holder and the other Holders of the Registrable Securities underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditorsrepresentatives of the Accountants, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other such Holder of the Registrable Securities shall reasonably request.
(h11) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters the managing underwriter selected for such underwriting by Holders holding a Majority of the Registrable Securities requested to be included in such underwriting; provided, however, that (i) such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter, and (ii) the Holders shall be responsible for any selling fees or commissions in connection with such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter a Majority of such Holders and each other Holder of the Registrable Securitiessuch managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwritersmanaging underwriter. If required by the underwriters, the Underwriter and the other The Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, shall also be made to and for the benefit of the Underwriter and the other such Holders. Such Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other such Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Underwriter's Warrant Agreement (Med Emerg International Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 7.2 or 7.2 7.3 hereof, the Company covenants and agrees the Representative covenant and agree as follows:
(a) The In connection with a demand under Section 7.3, the Company shall use its best efforts to file a registration statement within forty-five (45) 45 days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Warrant Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), such number of prospectuses as such holder shall reasonably be have requested. If the Company shall fail to comply with its obligations under this Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), extend the Exercise Period by such number of days as shall equal the delay caused by the Company's failure.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissionscommissions or other charges of broker-dealers acting on behalf of the Holders), fees fees, and expenses incurred by the Company in connection with all registration statements filed pursuant to Sections 7.1 and Section 7.2 hereof includinghereof, including without limitation, limitation the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c) In the event of the filing of a registration statement pursuant to a demand made by Holders pursuant to Section 7.3, the Holders for whom Warrant Shares are pursuant to such demand (including any Holders whose Warrant Shares are included in such registration pursuant to Section 7.2), shall pay all costs, fees and expenses incurred by the Company (including the reasonable and documented fees and expenses of one counsel for the Company) in connection with all registration statements filed pursuant to such demand, provided, however, that (i) in the event that any such registration statement registers shares for the account of the Company or shareholders other than any Holders, the Holders shall pay only that portion of the costs, fees and expenses incurred by the Company in connection with such registration statement equal to the amount equal to (x) the aggregate of such costs, fees and expenses incurred by the Company, multiplied by (y) a fraction, the numerator of which is the number of Warrant Shares included in such registration statement and the denominator of which is the total number of shares included in such registration statement; and (ii) in the event that, at the time the demand is made, the Company is eligible to use Form S-3 (or any successor form under the Securities Act) to register the Warrant Shares for resale by the Holders, the Holders shall not be required to pay fees, costs or expenses of the Company (including the reasonable and documented fees and expenses of one counsel for the Company) in connection with any demand made pursuant to Section 7.3 in the aggregate in excess of $15,000.
(d) The Company will shall take all reasonably necessary action which that may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or process, to qualify as a foreign corporation to do business under the laws of any such jurisdiction, or to make any changes in its capital structure or in any other material aspects of its business or to enter into any material agreement with any Blue Sky Commissioners, including any agreements to escrow any shares of its capital stock.
(de) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing preparing, or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions contained in Section 9 of the Underwriting Agreement pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 each of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementUnderwriters.
(ef) The Underwriter and all other Holders Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, Company and its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense damage, expense, or liability (including all expenses reasonably incurred in investigating, preparing preparing, or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act Exchange Act, or otherwise, arising from information furnished in writing by or on behalf of such Holders, or their successors or assigns, specifically for specific inclusion in such registration statement statement, to the same extent and with the same effect as the provisions contained in Section 5 9 of the Underwriting Agreement pursuant to which each of the Underwriter Underwriters has severally agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(fg) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders Holder(s) to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(gh) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Shares to the Underwriter and all other Holders of the Registrable Securities participating be included in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the any registration statement and permit the Underwriter and the other Holders of the Registrable Securities filed pursuant to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information Section 7.3(a) hereof without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers Warrants and independent auditorsthe Warrant Shares representing a Majority of such securities, all to such reasonable extent and at such reasonable times and as often as the Underwriter and provided, however, that any other Holder holders of shares of Common Stock who have the right, as of the Registrable Securities shall reasonably request.
(h) If required date hereof, to have their shares of Common Stock included in certain registrations of the Common Stock undertaken by the underwriters Company, shall have the right to have their shares included in such registration to the extent of such rights. In the event that any registration undertaken by the Company pursuant to section 7.3(a) shall be, in whole or in part, an underwritten public offering, (i) as a condition to permitting the inclusion of any such shares of Common Stock other than any Warrant Shares in such registration, each holder thereof must agree to participate in the underwriting arrangements contemplated in connection with an such underwritten offering which includes Registrable Securities public offering, and (ii) the number of shares to be included in such registration (other than any Warrant Shares) may be reduced if and to the extent that the managing underwriter shall be of the opinion that such inclusion would adversely affect the marketing of the securities to be sold by the Company therein. In the event of the filing of a registration statement pursuant to this Section 77.3 hereof, the Company shall enter into an underwriting agreement with one not permit any other registration statement to be or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to remain effective during the Company, period commencing on the Underwriter and each other Holder effective date of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof7.3 and ending on the date 120 days after such effective date, other than with respect to shares issuable in connection with a merger or acquisition and registered on Form S-4 (or a similar special-purpose form) or with an employee benefit plan and registered on Form S-8 (or a similar special-purpose form), without the prior written consent of the Holders of the Warrants and the Warrant Shares representing a Majority of such securities.
(i) The Company shall furnish, or cause to be furnished, furnished to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, or if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, letter dated the effective date of such registration statement (and, and if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify as soon as practicable after the Underwriter and each Holder effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(k) The Company shall deliver promptly to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel, or auditors and all memoranda generated or received by the Company and relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Company's discovery that, or upon the happening of any event registration statement as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or it deems reasonably necessary to make the statements therein not misleading in the light comply with applicable securities laws or rules of the circumstances under which they were madeNational Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records, and upon receipt of such notice properties and opportunities to discuss the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request business of the Underwriter or Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such HolderHolder or underwriter shall reasonably request.
(l) In connection with an underwritten offering pursuant to Section 7.3, the Company shall promptly prepare and furnish enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting, which may be the Representative. If not the Representative, the selection of such managing underwriter shall be subject to the Underwriter approval of the Company, which shall not be unreasonably withheld or delayed. Such agreement shall be reasonably satisfactory in form and substance to the Company, each Holder, and such Holder managing underwriters, and each shall contain such representations, warranties, and covenants by the Company and the participating Holders and such other terms and conditions as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, if anyat their option, a reasonable number require that any or all the representations, warranties, and covenants of copies of a supplement the Company to or an amendment for the benefit of such prospectus as may underwriters shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement of a material fact or omit to state a material fact be required to be stated therein make any representations or necessary warranties to make or agreements with the statements therein not misleading in Company or the light underwriters except as they may relate to such Holders and their intended methods of the circumstances under which they were madedistribution.
(km) For purposes of this Agreement, the term "majorityMajority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Warrants and/or Warrant Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's and/or Warrant Shares that (i) are not held by the Company, an affiliate, officer, creditor, employee, or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Representative's Warrant Agreement (Brunswick Technologies Inc)
Covenants of the Company With Respect to Registration. In connection with any registration registrations under Section 7.1 or 7.2 Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five (45) calendar days of receipt of any demand therefor pursuant to Section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in accordance with Section 7.1a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Underwriters' Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all the first registration statements statement filed pursuant to Sections 7.1 7(b) and 7.2 7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c3) The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Underwriters' Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders of the Registrable Underwriters' Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter Underwriters contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 8 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders of the Registrable Underwriters' Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 8 of the Underwriting Agreement pursuant to which the Underwriter has Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Underwriters' Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Under-writers' Securities in any registration statement filed pursuant to Section 7(b) hereof without the prior written consent, which consent shall not be unreasonably withheld, of the Holders of the Underwriters' Warrants and Underwriters' Securities representing a Majority of such securities (assuming exercise of all of the Underwriters' Warrants).
(8) The Company shall furnish to a designated representative of the Holders participating in the offering and to each underwriter, if any, a signed counterpart, addressed to the Company or the underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) if such registration includes an underwritten public offering a copy of the "cold comfort" letter dated the effective date of such registration statement signed by each independent public accountant who has issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letters. with respect to events subsequent to the date of such financial statements, as are duly covered in opinions of issuer's counsel and in accountants' letters, with respect to customary events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 1 (a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter each Holder and the other Holders of the Registrable Securities underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other such Holder of the Registrable Securities shall reasonably request.
(h11) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters the managing underwriter selected for such underwriting by Holders holding a Majority of the Underwriters' Securities requested to be included in such underwriting, provided, however that (i) such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter or underwriters, and (ii) the Holders shall be responsible for any selling fees or commissions in connection with such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter a Majority of such Holders (in respect of a registration under Section 7(b) only) and each other Holder of the Registrable Securitiessuch managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwritersmanaging underwriter. If required by the underwriters, the Underwriter and the other The Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Underwriters' Securities and may, at their option, require that any or all the representations representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, shall also be made to and for the benefit of the Underwriter and the other such Holders. Such Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other such Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 Sections 7.3 and 7.4 hereof, the Company covenants and agrees as follows:
(a1) The Company shall use its best efforts to file a registration statement within forty-five sixty (4560) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 7.3 and 7.2 7.4 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.47.5(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and Holder(s), extend the other Holders, be liable for any or all actual damages (which may include damages due to a loss exercise period of profit)the Underwriters Warrants by such number of days as shall equal the delay caused by the Company's failure.
(c3) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other Holders, Holder(s); provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter contained in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 7 of the Underwriting Agreement.
(e5) The Underwriter and all other Holders Holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 7 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring For a period of one hundred eighty (180) days after the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing effectiveness of any registration statement filed pursuant to Section 7.4 hereof, the Company shall not permit any other registration statement (other than (1) a registration statement relating to the securities for which the Company has granted demand registration rights, as described in the Prospectus included in the Registration Statement, (2) a registration statement relating to the shares of Common Stock issuable upon exercise of the Warrants issued to the public pursuant to the Registration Statement, (3) a registration statement relating to the securities for which the Company has granted piggyback registration rights, as described in the Prospectus included in the Registration Statement and (4) a registration statement filed on Forms S-4 or S-8 to be or remain effective during the effectiveness thereof.
(g) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the a registration statement and permit the Underwriter and the other Holders of the Registrable Securities filed pursuant to do such investigationSection 7.4 hereof, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business Holders of the Company with its officers and independent auditors, all to ▇▇▇▇ ▇▇▇▇▇▇▇ Securities representing a Majority of such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably requestsecurities.
(h7) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance furnish upon request to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, comfort letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), ) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect resp ect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j8) The Company shall as soon as practicable after the effective date of any registration statement filed pursuant to Sections 7.3 and 7.4 hereof, and in any event within 15 months thereafter, make generally available to its security holders (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(9) The Company shall deliver promptly notify the Underwriter and to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all written correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the Registrable Securities covered by such registration statementNASD. Such investigation shall include access to books, at any time when a prospectus relating thereto is required records and properties and opportunities to be delivered under discuss the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light business of the circumstances under which they were madeCompany with its officers and independent auditors, all to such reasonable extent and upon receipt of at such notice the Underwriter reasonable times and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or as often as any such HolderHolder or underwriter shall reasonably request.
(10) With respect to any registration under Section 7.4 hereof, the Company shall promptly prepare enter into an underwriting agreement with the managing underwriter selected for such underwriting by the Initiating Holders or the Paying Holders, as the case may be. Such agreement shall be satisfactory in form and furnish substance to the Underwriter or such Company, each Holder and each such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, if anyat their option, a reasonable number require that any or all the representations, warranties and covenants of copies of a supplement the Company to or an amendment for the benefit of such prospectus as may underwriters shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement of a material fact or omit to state a material fact be required to be stated therein make any representations or necessary warranties to make or agreements with t he Company or the statements therein not misleading in the light underwriters, except as they may relate to such Holders and their intended methods of the circumstances under which they were madedistribution.
(k11) For purposes of this Agreement, the term "majority" Majority in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's WarrantsRegistrable Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Underwriters Warrants and/or shares of Common Stock issuable upon exercise of the Underwriters Warrants that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and Underwriter's Shares that (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
(12) Nothing contained in this Agreement shall be construed as requiring the Holder(s) to exercise their Underwriters Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(13) In addition to the Registrable Securities, upon the written request therefor, by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, including without limitation restricted shares of Common Stock, options, warrants or any other securities convertible into shares of Common Stock.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 10.1 or 7.2 10.2 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best reasonable efforts to file a registration statement within forty-five fifty (4550) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best reasonable efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Warrant Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), under such registration statement such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissionscommissions which shall be paid by the Holders), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 Section 10.1 and 7.2 10.2(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Underwriter and all other Holders of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(e) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(ge) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities each Holder participating in the offering requesting the correspondence and memoranda described below copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit statement.
(f) Notwithstanding anything herein to the Underwriter and contrary, the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business obligations of the Company with its officers and independent auditorsrights of the Holders under Sections 10.1, all to such reasonable extent 10,.2 and 10.3 shall expire and terminate at such reasonable times and time as often as the Underwriter and any other Holder of the Registrable Securities R▇▇▇, B▇▇▇ & Co., Inc. or its successors, shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of have received from counsel to the Company, dated the effective date Company an unqualified written opinion of such registration statement (andcounsel that the Holders have the right, if such registration includes an underwritten public offeringpursuant to the provisions of Rule 144 under the Act, an opinion dated to sell within any three month period from the date of the closing under the underwriting agreement), opinion all Warrant Shares then held and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date purchasable upon exercise of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered Warrants by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were madeHolders.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Sources: Warrant Agreement (Perma Fix Environmental Services Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7.1 or 7.2 hereof, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement within forty-five thirty (4530) days of receipt of any demand therefor in accordance with Section 7.1therefor, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish to the Underwriter and each Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities"), Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of the Underwriter's and the other HoldersHolder(s)' counsel and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 and 7.2 7.2(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.2(c). If the Company shall fail to comply with the provisions of Section 7.47.3(a), the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other HoldersHolder(s), be liable for any or all actual incidental or special damages (which may include damages due to a loss sustained by the Holder(s) requesting registration of profit)their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the Underwriter and the other HoldersHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(de) The Company shall indemnify the Underwriter and all other Holders Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls such Underwriter or Holders Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter in Section 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreementstatement.
(e) The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the 1934 Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the 1934 Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit the Underwriter and the other Holders of the Registrable Securities to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior written consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any other Holder of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract