Directed Share Program. It is understood that approximately [_________] shares of the Firm Stock ("Directed Shares") will initially be reserved by the Underwriters for offer and sale to officers, directors, employees and consultants of the Company and their family members and to other persons having business relationships with the Company and its subsidiaries ("Directed Share Participants") upon the terms and conditions set forth in the Prospectus and in accordance with the rules and regulations of the National Association of Securities Dealers, Inc. Under no circumstances will Lehm▇▇ ▇▇▇thers Inc. or any Underwriter be liable to the Company or to any Directed Share Participant for any action taken or omitted to be taken in good faith in connection with such Directed Share Program. To the extent that any Directed Shares are not affirmatively confirmed for purchase by any Directed Share Participant on or immediately after the date of this Agreement, such Directed Shares may be offered to the public upon the terms and conditions set forth in the Prospectus. The Company agrees to pay all fees and disbursements incurred by the Underwriters in connection with the Directed Share Program, including counsel fees and any stamp duties or other taxes incurred by the Underwriters in connection with the Directed Share Program. In connection with the offer and sale of the Directed Shares, the Company agrees, promptly upon a request in writing, to indemnify and hold harmless Lehm▇▇ ▇▇▇thers Inc. and the other Underwriters from and against any loss, claim, damage, expense, liability or action which (i) arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the approval of the Company for distribution to Directed Share Participants in connection with the Directed Share Program or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) arises out of the failure of any Directed Share Program participant to pay for and accept delivery of Directed Shares that the Participant agreed to purchase or (iii) is otherwise related to the Directed Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted directly from the bad faith or gross negligence of Lehm▇▇ ▇▇▇thers Inc.
Appears in 2 contracts
Sources: Underwriting Agreement (Talarian Corp), Underwriting Agreement (Talarian Corp)
Directed Share Program. (a) It is understood that approximately [_________] _ shares of the Firm Stock ("Directed Shares") will initially be reserved by the Underwriters for offer and sale to officers, directors, employees and consultants of the Company and their family members and to other persons having business relationships with the Company and its subsidiaries ("Directed Share Participants") upon the terms and conditions set forth in the Prospectus and in accordance with the rules and regulations of the National Association of Securities Dealers, Inc. (the "Directed Share Program"). Under no circumstances will Lehm▇▇ ▇▇▇thers ▇▇▇ Brothers Inc. or any Underwriter be liable to the Company or to any Directed Share Participant for any action taken or omitted to be taken in good faith in connection with such Directed Share Program. To the extent that any Directed Shares are not affirmatively confirmed reconfirmed for purchase by any Directed Share Participant on or immediately after the date of this Agreement, such Directed Shares may be offered to the public upon as part of the terms and conditions set forth in the Prospectus. public offering contemplated hereby.
(b) The Company agrees to pay all fees and disbursements incurred by the Underwriters in connection with the Directed Share Program, including counsel fees and any stamp duties or other taxes incurred by the Underwriters in connection with the Directed Share Program. .
(c) In connection with the offer and sale of the Directed Shares, the Company agrees, promptly upon a request in writing, to indemnify and hold harmless Lehm▇▇ ▇▇▇thers ▇▇▇ Brothers Inc. and the other Underwriters from and against any loss, claim, damage, expense, liability or action which (i) arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact regarding the Company contained in any material prepared by or with the prior written approval of the Company for distribution to Directed Share Participants in connection with the Directed Share Program or any omission or alleged omission to state therein a material fact regarding the Company required to be stated therein or necessary to make the statements therein not misleading, (ii) arises out of the failure of any Directed Share Program participant Participant to pay for and accept delivery of Directed Shares that the Directed Share Participant agreed to purchase purchase, (iii) arises out of the failure of any Directed Share Participant that is also an employee of the Company to pay for and accept delivery by the end of the first day after the date of this Agreement any Directed Shares that were allocated to such employee Directed Share Participant, (iv) arises out of, or is based upon, the violation of any applicable laws or regulations of foreign jurisdictions where Directed Shares have been offered, or (iiiv) is otherwise related to the Directed Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted directly from the bad faith or gross negligence of Lehm▇▇ ▇▇▇thers Inc.▇▇▇ Brothers Inc. or such Underwriter.
Appears in 1 contract
Directed Share Program. It is understood This indemnification shall be in addition to any liability that approximately [_________] shares the Company may otherwise have provided, however, that with respect to any untrue statement or omission made in any Preliminary Prospectus, the indemnity agreement contained in this paragraph shall not inure to the benefit of any Underwriter (or to the benefit of any person controlling such Underwriter or to any officer, director, employee or agent of any Underwriter) from whom the person asserting any such Damages purchased the Shares concerned if both (A) a copy of the Firm Stock ("Directed Shares") will initially be reserved Time of Sale Information was not sent or given to such person at or prior to the written confirmation of the sale of such Shares to such person as required by the Underwriters for offer Act and sale (B) the untrue statement or omission in the Preliminary Prospectus was corrected in the Time of Sale Information. In addition to officersits other obligations under this Section 8, directorsthe Company agrees that, employees as an interim measure during the pendency of any claim, action, investigation, inquiry or other proceeding arising out of or based upon any statement or omission, or any inaccuracy in the representations and consultants warranties of the Company and their family members and herein or failure to other persons having business relationships with the Company and perform its subsidiaries ("Directed Share Participants") upon the terms and conditions obligations hereunder, all as set forth in this Section 8, the Prospectus and in accordance with the rules and regulations of the National Association of Securities Dealers, Inc. Under no circumstances party against whom indemnification is being sought will Lehm▇▇ ▇▇▇thers Inc. reimburse each Underwriter on a monthly basis for all reasonable legal or any Underwriter be liable to the Company or to any Directed Share Participant for any action taken or omitted to be taken in good faith other out-of-pocket expenses incurred in connection with investigating or defending any such Directed Share Programclaim, action, investigation, inquiry or other proceeding (to the extent documented by reasonably itemized invoices therefor), notwithstanding the absence of a judicial determination as to the propriety and enforceability of the obligation of the Company to reimburse each Underwriter for such expenses and the possibility that such payments might later be held to have been improper by a court of competent jurisdiction. To the extent that any Directed Shares such interim reimbursement payment is so held to have been improper, each Underwriter shall promptly return it to the person(s) from whom it was received. Any such interim reimbursement payments that are not affirmatively confirmed made to the Underwriters within 30 days of a request for purchase reimbursement shall bear interest compounded daily at a rate determined on the basis of the base lending rate announced from time to time by any Directed Share Participant on or immediately after The Wall Street Journal from the date of this Agreementsuch request. If any action or claim shall be brought against any Underwriter or any person controlling any Underwriter in respect of which indemnity may be sought against the Company, such Directed Shares Underwriter or such controlling person shall promptly notify in writing the party(s) against whom indemnification is being sought (the “indemnifying party” or “indemnifying parties”), and such indemnifying party(s) shall assume the defense thereof, including the employment of counsel reasonably acceptable to such Underwriter or such controlling person and the payment of all reasonable fees of and expenses incurred by such counsel. Such Underwriter or any such controlling person shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter or such controlling person, unless (i) the indemnifying party(s) has (have) agreed in writing to pay such fees and expenses, (ii) the indemnifying party(s) has (have) failed to assume the defense and employ counsel reasonably acceptable to the Underwriter or such controlling person or (iii) the named parties to any such action (including any impleaded parties) include both such Underwriter or such controlling person and the indemnifying party(s), and such Underwriter or such controlling person shall have been advised by its counsel that one or more legal defenses may be offered available to the public upon Underwriter that may not be available to the terms Company, or that representation of such indemnified party and conditions set forth any indemnifying party(s) by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the Prospectusindemnifying party(s) shall not have the right to assume the defense of such action on behalf of such Underwriter or such controlling person (but the Company shall not be liable for the fees and expenses of more than one counsel for the Underwriters and such controlling persons)). The Company agrees to pay all fees and disbursements incurred by indemnifying party(s) shall not be liable for any settlement of any such action effected without its (their several) written consent, but if settled with such written consent, or if there be a final judgment for the Underwriters plaintiff in connection with the Directed Share Program, including counsel fees and any stamp duties or other taxes incurred by the Underwriters in connection with the Directed Share Program. In connection with the offer and sale of the Directed Sharessuch action, the Company agrees, promptly upon a request in writing, indemnifying party(s) agree(s) to indemnify and hold harmless Lehm▇▇ ▇▇▇thers Inc. any Underwriter and the other Underwriters any such controlling person from and against any loss, claim, damage, expense, liability or expense by reason of such settlement or judgment, but in the case of a judgment only to the extent stated in the first paragraph of this Section 8. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and any person who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with respect to information furnished in writing by or on behalf of such Underwriter through you expressly for use in the Registration Statement, the Prospectus, the Time of Sale Information, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication or any Preliminary Prospectus, or any amendment or supplement thereto. If any action or claim shall be brought or asserted against the Company, any of its directors, any of its officers or any such controlling person based on the Registration Statement, the Prospectus, the Time of Sale Information or any Preliminary Prospectus, or any amendment or supplement thereto, and in respect of which indemnity may be sought against any Underwriter pursuant to this paragraph, such Underwriter shall have the rights and duties given to the Company by the immediately preceding paragraph (except that if the Company shall have assumed the defense thereof such Underwriter shall not be required to do so, but may employ separate counsel therein and participate in the defense thereof, but the fees and expenses of such counsel shall be at such Underwriter’s expense), and the Company, its directors, any such officers and any such controlling persons, shall have the rights and duties given to the Underwriters by the immediately preceding paragraph. In any event, the Company will not, without the prior written consent of the Representative, settle or compromise or consent to the entry of any judgment in any proceeding or threatened claim, action, suit or proceeding in respect of which the indemnification may be sought hereunder (whether or not the Representative or any person who controls the Representative within the meaning of Section 15 of the Act or Section 20 of the Exchange Act is a party to such claim, action, suit or proceeding) unless such settlement, compromise or consent includes an unconditional release of all Underwriters and such controlling persons from all liability arising out of such claim, action, suit or proceeding. If the indemnification provided for in this Section 8 is unavailable or insufficient for any reason whatsoever to an indemnified party in respect of any Damages referred to herein, then an indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Damages (x) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand, and the Underwriters on the other hand, from the offering and sale of the Shares (or, in the case of Damages arising out of or based upon circumstances described in clauses (iii), (iv) and (v) of the first paragraph of this Section 8, from the offering and sale of the Directed Shares) or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) above but also the relative and several fault of the Company on the one hand, and the Underwriters on the other hand, in connection with the statements or omissions that resulted in such Damages as well as any other relevant equitable considerations. With respect to Damages arising out of or based upon circumstances described in clauses (i) arises out ofor (ii) of the first paragraph of this Section 8, or is based uponthe relative and several benefits received by the Company on the one hand, and the Underwriters on the other hand, shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus; provided that, in the event that the Underwriters shall have purchased any Additional Shares hereunder, any determination of the relative benefits received by the Company or the Underwriters from the offering of the Shares shall include the net proceeds (before deducting expenses) received by the Company and the underwriting discounts and commissions received by the Underwriters, from the sale of such Additional Shares, in each case computed on the basis of the respective amounts set forth in the notes to the table on the cover page of the Prospectus. With respect to Damages arising out of or based upon circumstances described in clauses (iii), (iv) or (v) of the first paragraph of this Section 8, the relative and several benefits received by the Company on the one hand, and the Underwriters on the other hand, shall be deemed to be in the same proportion as the total net proceeds from the offering of the Directed Shares (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters with respect to the Directed Shares, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Company on the one hand, and the Underwriters on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the approval of the Company for distribution to Directed Share Participants in connection with the Directed Share Program or any omission or alleged omission to state therein a material fact relates to information supplied by the Company on the one hand, or by the Underwriters on the other hand and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 8 was determined by a pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the Damages referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, (x) with respect to Damages arising out of or based upon circumstances described in clauses (i) or (ii) of the first paragraph of this Section 8, no Underwriter shall be required to contribute any amount in excess of the amount of the underwriting commissions received by such Underwriter in connection with the Shares underwritten by it and distributed to the public and (y) with respect to Damages arising out of or based upon circumstances described in clauses (iii), (iv) and (v) of the first paragraph of this Section 8, no Underwriter shall be stated therein required to contribute any amount in excess of the amount of the underwriting commissions received by such Underwriter in connection with the Directed Shares underwritten by it and distributed to Participants in the Directed Share Program. 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. The Underwriters’ obligations to contribute pursuant to this Section 8 are several in proportion to the respective numbers of Firm Shares set forth opposite their names in Schedule I hereto (or necessary such numbers of Firm Shares increased as set forth in Section 11 hereof) and not joint. Notwithstanding the second paragraph of this Section 8, any Damages for which an indemnified party is entitled to make indemnification or contribution under this Section 8 shall be paid by the statements therein not misleadingindemnifying party to the indemnified party as Damages are incurred after receipt of reasonably itemized invoices therefor. The indemnity, contribution and reimbursement agreements contained in this Section 8 and the representations and warranties of the Company set forth in this Agreement shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any Underwriter or any person controlling any Underwriter, the Company, its directors or officers or any person controlling the Company, (ii) arises acceptance of any Shares and payment therefor hereunder and (iii) any termination of this Agreement. A successor to any Underwriter or any person controlling any Underwriter, or to the Company, its directors or officers or any person controlling the Company, shall be entitled to the benefits of the indemnity, contribution and reimbursement agreements contained in this Section 8. It is agreed that any controversy arising out of the failure operation of the interim reimbursement arrangements set forth in the second paragraph of this Section 8, including the amounts of any Directed Share Program participant to pay for requested reimbursement payments and accept delivery the method of Directed Shares that the Participant agreed to purchase or (iii) is otherwise related determining such amounts, shall be settled by arbitration conducted pursuant to the Directed Share ProgramCode of Arbitration Procedure of FINRA. Any such arbitration must be commenced by service of a written demand for arbitration or written notice of intention to arbitrate, other than lossestherein electing the arbitration tribunal. In the event the party demanding arbitration does not make such designation of an arbitration tribunal in such demand or notice, claimsthen the party responding to said demand or notice is authorized to do so. Such arbitration would be limited to the operation of the interim reimbursement provisions contained in the second and fourth paragraphs of this Section 8, damages and would not resolve the ultimate propriety or liabilities (or enforceability of the obligation to reimburse expenses relating thereto) that are finally judicially determined to have resulted directly from is created by the bad faith or gross negligence provisions of Lehm▇▇ ▇▇▇thers Inc.the second paragraph of this Section 8.
Appears in 1 contract
Directed Share Program. (a) It is understood that approximately [_________] shares of _ Firm Shares (the Firm Stock ("Directed Shares") will initially be reserved by the Underwriters for offer and sale to officers, directors, employees and consultants of the Company and their family members and to other persons having business relationships with the Company and its subsidiaries ("Directed Shares Participants") in a directed share program ("Directed Share ParticipantsProgram") upon the terms and conditions set forth in the Prospectus and in accordance with the rules and regulations of the National Association of Securities Dealers, Inc. Under no circumstances will Lehm▇▇ ▇▇▇thers Inc. ▇▇▇ Brothers or any Underwriter be liable to the Company or to any Directed Share Participant for any action taken or omitted to be taken in good faith in connection with such the Directed Share Program. To the extent that any Directed Shares are not affirmatively confirmed reconfirmed for purchase by any Directed Share Participant on or immediately after the date of this Agreement, such Directed Shares may be offered to the public upon as part of the terms and conditions set forth in the Prospectus. public offering contemplated hereby.
(b) The Company agrees to pay all fees and disbursements incurred by the Underwriters in connection with the Directed Share Program, including counsel fees and any stamp duties or other taxes incurred by the Underwriters in connection with the Directed Share Program. .
(c) In connection with the offer and sale of the Directed Shares, the Company agrees, promptly upon a request in writing, to indemnify and hold harmless Lehm▇▇ ▇▇▇thers Inc. ▇▇▇ Brothers and the other Underwriters from and against any loss, claim, damage, expense, liability or action which (i) arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in any material materials prepared by or with the approval of the Company for distribution to Directed Share Participants in connection with the Directed Share Program or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) arises out of the failure of any Directed Share Program participant Participant to pay for and accept delivery of Directed Shares that the Participant agreed to purchase purchase, or (iii) is otherwise related to the Directed Share Program, other than losses, claims, damages or pr liabilities (or expenses relating thereto) that are finally judicially determined to have resulted directly from the bad faith or gross negligence or willful misconduct of Lehm▇▇ ▇▇▇thers Inc.▇▇▇ Brothers.
Appears in 1 contract
Directed Share Program. It is understood that approximately [_________] shares of the Firm Stock 180,000 Shares ----------------------- ("Directed Shares") will initially be reserved by the Underwriters for offer and sale to officers, directors, employees and consultants of the Company and their family members and to other persons having business relationships with the Company and its subsidiaries ("Directed Share Participants") upon the terms and conditions set forth in the Prospectus and in accordance with the rules and regulations of the National Association NASD (the "Directed Share Program") to directors, officers, employees, business associates and related persons of Securities Dealersthe Company ("Participants") who have heretofore delivered to you offers to purchase Shares in form reasonably satisfactory to you, Inc. Under and that any allocation of such Shares among such persons will be made in accordance with timely directions received by you from the Company. Except as set forth below, under no circumstances will Lehm▇▇ ▇▇▇thers Inc. or any Underwriter be liable to the Company or to any Directed Share Participant for any action taken or omitted to be taken in good faith in connection with such Directed Share Program. To It is further understood that to the extent that any Directed Shares are not affirmatively confirmed reconfirmed for purchase by any Directed Share Participant on or immediately after the date of this Agreement, such Directed Shares may be offered to the public upon as part of the terms and conditions set forth in the Prospectuspublic offering contemplated hereby. The Company agrees to pay all documented costs and expenses of the Underwriters reasonably incurred (including the fees and disbursements incurred by of counsel to the Underwriters in connection with Underwriters) solely to the Directed Share Program, including counsel fees extent such costs and any stamp duties or other taxes incurred by the Underwriters in connection with the Directed Share Program. In connection with expenses are incident to the offer and sale of shares of the Stock by the Underwriters pursuant to the Directed Shares, the Share Program.
(a) The Company agrees, promptly upon a request in writing, agrees to indemnify and hold harmless Lehm▇▇ ▇▇▇thers Inc. the Underwriters and each person, if any, who controls each Underwriter within the other Underwriters meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (herein called the "Underwriting Entities"), from and against any lossand all losses, claimclaims, damage, expense, liability damages or action which liabilities (i) arises out of, or is based upon, caused by any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the approval consent of the Company for distribution to Directed Share Participants in connection with the Directed Share Program Program, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made, not misleading, ; (ii) arises out of caused by the failure of any Directed Share Program participant Participant to pay for and accept delivery of Directed Shares that the Participant has agreed to purchase and (A) which immediately following the effectiveness of the Registration Statement, were subject to a properly confirmed agreement to purchase from UBS Warburg LLC and (B) UBS Warburg LLC in good faith offered and was unable to sell such Directed Shares to the public in the offering of Firm Stock after reasonable efforts to sell such Shares; or (iii) is otherwise ), except as specifically provided in the immediately preceding clause (ii), related to to, arising out of, or in connection with the Directed Share Program, including those arising out of any violation or alleged violation of the Act or out of any rescission right of any person in respect thereof, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted directly from the bad faith or gross negligence of Lehm▇▇ ▇▇▇thers Inc.the Underwriting Entities.
(b) Upon the service of a summons or other initial legal process upon any Underwriting Entity in any action or suit instituted against it or upon its receipt of written notification of the commencement of any investigation or inquiry of, or proceeding against, it in respect of which indemnity may be sought pursuant to Section 12(a), the Underwriting Entity seeking indemnity will promptly give Notice of such service or notification to the Company. No indemnification provided for in Section 12(a) shall be available to any Underwriting Entity who shall fail promptly so to give the Notice to the Company to the extent the Company was unaware of the action, suit, investigation, inquiry or proceeding to which the Notice would have related and was prejudiced by the failure to give the Notice, but the omission so to notify the Company of any such service or notification shall not relieve the Company from any liability which it may have to any such Underwriting Entity for contribution or otherwise than on account of such indemnity agreement in Section 12(a) (except as specifically provided in paragraph (c) of this Section 12). Any Underwriting Entity shall be entitled at its own expense to participate in the defense of any action, suit or proceeding against, or investigation or inquiry of, such Underwriting Entity. The Company shall be entitled, if it so elects within a reasonable time after receipt of the Notice by giving a Notice of Defense to any such Underwriting Entity, to assume the entire defense of such action, suit, investigation, inquiry or proceeding, in which event such defense shall be conducted, at the expense of the Company, by counsel chosen by the Company and reasonably satisfactory to such Underwriting Entity; provided, however, that (i) if any such Underwriting Entity reasonably determines that there may be a conflict between the positions of the Company and of any such Underwriting Entity in conducting the defense of such action, suit, investigation, inquiry or proceeding or that there may be legal defenses available to such Underwriting Entity different from or in addition to those available to the Company, then counsel for such Underwriting Entity shall be entitled to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of such Underwriting Entity and (ii) in any event, the Underwriting Entity shall be entitled to have counsel chosen by such Underwriting Entity to participate in, but not conduct, the defense. It is understood that the Company shall not, in respect of the legal expense of any such Underwriting Entity in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such Underwriting Entities and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by UBS Warburg LLC. If, within a reasonable time after receipt of the Notice, the Company gives a Notice of Defense in connection with this Section 12 and the counsel chosen by the Company is reasonably satisfactory to the Underwriting Entity, the Company will not be liable under this Section 12 for any legal or other expenses subsequently incurred by any such Underwriting Entity in connection with the defense of the action, suit, investigation, inquiry or proceeding, except that (A) the Company shall bear the legal and other expenses incurred in connection with the conduct of the defense as referred to in clause (i) of the proviso to the preceding sentence and (B) the Company shall bear such other expenses as it or they have authorized to be incurred by any such
Appears in 1 contract
Sources: Underwriting Agreement (Optical Communication Products Inc)
Directed Share Program. It is understood that approximately [_________] 300,000 shares of the Firm Stock ("Directed Shares") will initially be reserved by the Underwriters for offer and sale to officers, directors, employees certain directors and consultants officers of the Company and their family members and to other persons having business relationships with whom the Company and its subsidiaries has an established business relationship ("Directed Share Participants") upon the terms and conditions set forth in the Prospectus and in accordance with the rules and regulations of the National Association of Securities Dealers, Inc. (the "Directed Share Program"). Under no circumstances will Lehm▇▇ ▇▇▇thers Inc. or any Underwriter be liable to the Company or to any Directed Share Participant for any action taken or omitted to be taken in good faith in connection with such Directed Share Program. To the extent that any Directed Shares are not affirmatively confirmed reconfirmed for purchase by any Directed Share Participant on or immediately after the date of this Agreement, such Directed Shares may be offered to the public upon as part of the terms and conditions set forth in the Prospectuspublic offering contemplated hereby. The Company agrees and Deluxe agree to pay all fees and disbursements incurred by the Underwriters in connection with the Directed Share Program, including counsel fees and any stamp duties or other taxes incurred by the Underwriters in connection with the Directed Share Program. In connection with the offer and sale of the Directed Shares, the Company agreesand Deluxe agree, promptly upon a request in writing, to indemnify and hold harmless Lehm▇▇ ▇▇▇thers Inc. and the other Underwriters from and against any loss, claim, damage, expense, liability or action which (i) arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the approval of the Company or Deluxe for distribution to Directed Share Participants in connection with the Directed Share Program or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) arises out of the failure of any Directed Share Program participant particpant to pay for and accept delivery (iii) of Directed Shares that the Directed Share Participant agreed to purchase or (iii) is otherwise related to the Directed Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted directly from the bad faith or gross negligence of Lehm▇▇ ▇▇▇thers Inc.such Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Efunds Corp)
Directed Share Program. It is understood that approximately [_________---------------------- [ ] shares of the Firm Stock ("Directed Shares") will initially be ------- reserved by the Underwriters for offer and sale to officers, directors, employees and consultants of the Company and their family members and to other persons having business relationships with the Company and its subsidiaries ("Directed Share Participants") upon the terms and conditions set forth in the Prospectus and in accordance with the rules and regulations of the National Association of Securities Dealers, Inc. Under no circumstances will Lehm▇▇ ▇▇▇thers Inc. the Representatives or any Underwriter be liable to the Company or to any Directed Share Participant for any action taken or omitted to be taken in good faith in connection with such Directed Share Program. To the extent that any Directed Shares are not affirmatively confirmed reconfirmed for purchase by any Directed Share Participant on or immediately after the date of this Agreement, such Directed Shares may be offered to the public upon as part of the terms and conditions set forth in the Prospectuspublic offering contemplated hereby. The Company agrees to pay all fees and disbursements incurred by the Underwriters in connection with the Directed Share Program, including counsel fees and any stamp duties or other taxes incurred by the Underwriters in connection with the Directed Share Program. In connection with the offer and sale of the Directed Shares, the Company agrees, promptly upon a request in writing, to indemnify and hold harmless Lehm▇▇ ▇▇▇thers Inc. the Representatives and the other Underwriters from and against any loss, claim, damage, expense, liability or action which (i) arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the approval of the Company for distribution to Directed Share Participants in connection with the Directed Share Program or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) arises out of the failure of any Directed Share Program participant to pay for and accept delivery of Directed Shares that the Participant agreed to purchase or (iii) is otherwise related to the Directed Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted directly from the bad faith or gross negligence of Lehm▇▇ ▇▇▇thers Inc.the Representatives.
Appears in 1 contract
Sources: Underwriting Agreement (Telik Inc)
Directed Share Program. It is understood that approximately [_________] shares of the Firm Stock ("Directed Shares"i) will initially be reserved by the Underwriters for offer and sale to officersThe Registration Statement, directors, employees and consultants of the Company and their family members and to other persons having business relationships with the Company and its subsidiaries ("Directed Share Participants") upon the terms and conditions set forth in the Prospectus and in accordance any preliminary prospectus comply, and any further amendments or supplements thereto will comply, with the rules and any applicable laws or regulations of foreign jurisdictions in which the National Association of Securities Dealers, Inc. Under no circumstances will Lehm▇▇ ▇▇▇thers Inc. Prospectus or any Underwriter be liable to the Company preliminary prospectus, as amended or to any Directed Share Participant for any action taken or omitted to be taken in good faith in connection with such Directed Share Program. To the extent that any Directed Shares supplemented, if applicable, are not affirmatively confirmed for purchase by any Directed Share Participant on or immediately after the date of this Agreement, such Directed Shares may be offered to the public upon the terms and conditions set forth in the Prospectus. The Company agrees to pay all fees and disbursements incurred by the Underwriters distributed in connection with the Directed Share Program, including counsel fees and (ii) no authorization, approval, consent, license, order registration or qualification of or with any stamp duties government, governmental instrumentality or court, other taxes incurred by than such as have been obtained, is necessary under the securities laws and regulations of foreign jurisdictions in which the Directed Shares are offered outside the United States. The Company has not offered, or caused the Underwriters in connection with the Directed Share Program. In connection with the offer and sale of the Directed Shares, the Company agrees, promptly upon a request in writing, to indemnify and hold harmless Lehm▇▇ ▇▇▇thers Inc. and the other Underwriters from and against any loss, claim, damage, expense, liability or action which (i) arises out of, or is based uponoffer, any untrue statement or alleged untrue statement of a material fact contained in Common Shares to any material prepared by or with the approval of the Company for distribution person pursuant to Directed Share Participants in connection with the Directed Share Program with the intent to unlawfully influence (i) a customer or any omission supplier of the Company to alter the customer's or alleged omission to state therein a material fact required to be stated therein supplier's level or necessary to make type of business with the statements therein not misleading, Company or (ii) arises out a trade journalist or publication to write or publish favorable information about the Company or its products.
(gg) The Company has delivered to the Representatives a true and correct copy of the failure Quorum Merger Agreement, together with all related agreements and all schedules and exhibits thereto, and there have been no amendments, alterations, modifications or waivers of any Directed Share Program participant of the provisions of the Quorum Merger Agreement since the form in which it has been delivered to pay the Representatives. The Quorum Merger Agreement has been duly authorized, executed and delivered by each of the Company and Quorum is a valid and binding agreement of the parities thereto and conforms to the descriptions thereof contained in the Prospectus. The Company is not aware of any event or condition which would reasonably be expected to materially and adversely affect the ability of any of the Company or Quorum to consummate the Quorum Transactions. Any certificate signed by an officer of the Company and delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a representation and accept delivery of Directed Shares warranty by the Company to each Underwriter as to the matters set forth therein. The Company acknowledges that the Participant agreed Underwriters and, for purposes of the opinions to purchase or (iii) is otherwise related be delivered pursuant to Section 5 hereof, counsel to the Directed Share ProgramCompany and counsel to the Underwriters, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to have resulted directly from the bad faith or gross negligence of Lehm▇▇ ▇▇▇thers Inc.such reliance.
Appears in 1 contract
Sources: Underwriting Agreement (Nexstar Broadcasting Group Inc)
Directed Share Program. It is understood that approximately [_________] 300,000 shares of the Firm Stock Shares ("Directed Shares") will initially be reserved by the Underwriters for offer and sale to officers, directors, employees and consultants of the Company and their family members and to other persons having business relationships with the Company and its subsidiaries ("Directed Share Participants") upon the terms and conditions set forth in the Prospectus and in accordance with the rules and regulations of the National Association of Securities Dealers, Inc. Under no circumstances will Lehm▇▇ ▇▇▇thers Inc. or any Underwriter be liable to the Company or to any Directed Share Participant for any action taken or omitted to be taken in good faith in connection with such Directed Share Program. To the extent that any Directed Shares are not affirmatively confirmed for purchase by any Directed Share Participant on or immediately after the date of this Agreement, such Directed Shares may be offered to the public upon the terms and conditions set forth in the Prospectus. The Company agrees to pay all fees and disbursements incurred by the Underwriters in connection with the Directed Share Program, including counsel fees and any stamp duties or other taxes incurred by the Underwriters in connection with the Directed Share Program. In connection with the offer and sale of the Directed Shares, the Company agrees, promptly upon a request in writing, to indemnify and hold harmless Lehm▇▇ ▇▇▇thers Inc. and the other Underwriters from and against any loss, claim, damage, expense, liability or action which (i) arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the approval of the Company for distribution to Directed Share Participants in connection with the Directed Share Program or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) arises out of the failure of any Directed Share Program participant to pay for and accept delivery of Directed Shares that the Participant agreed to purchase or (iii) is otherwise related to the Directed Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted directly from the bad faith or gross negligence of Lehm▇▇ ▇▇▇thers Inc.
Appears in 1 contract
Directed Share Program. It is understood and agreed that approximately [_________] shares of the Firm Stock ("Directed Shares") will initially be reserved by the Underwriters for offer and sale to officers, directors, employees and consultants directors of the Company Company, certain holders of Common Stock and their family members preferred stock convertible into Common Stock and to other persons having business relationships associated with the Company and its subsidiaries ("Directed Share Participants") upon the terms and conditions set forth in the Prospectus and in accordance with the rules and regulations of the National Association of Securities Dealers, Inc. (the "Directed Share Program"). Under no circumstances will Lehm▇▇ ▇▇▇thers Inc. or any Underwriter be liable to the Company or to any Directed Share Participant for any action taken or omitted to be taken in good faith in connection with such Directed Share Program. To the extent that any Directed Shares are not affirmatively confirmed reconfirmed for purchase by any Directed Share Participant on or immediately after the date of this Agreement, such Directed Shares may be offered to the public upon as part of the terms and conditions set forth in the Prospectuspublic offering contemplated hereby. The Company agrees to pay all fees and disbursements incurred by the Underwriters in connection with the Directed Share Program, including counsel fees and any stamp duties or other taxes incurred by the Underwriters in connection with the Directed Share Program. In connection with the offer and sale of the Directed Shares, the Company agrees, promptly upon a request in writing, to indemnify and hold harmless Lehm▇▇ ▇▇▇thers Inc. and the other Underwriters from and against any loss, claim, damage, expense, liability or action which (i) arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the approval of the Company for distribution to Directed Share Participants in connection with the Directed Share Program or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) arises out of the failure of any Directed Share Program participant to pay for and accept delivery of Directed Shares that the Directed Share Participant agreed to purchase or (iii) is otherwise related to the Directed Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted directly from the bad faith or gross negligence of Lehm▇▇ ▇▇▇thers Inc.such Underwriters.
Appears in 1 contract
Directed Share Program. It is understood This indemnification shall be in addition to any liability that approximately [_________] shares the Company may otherwise have provided, however, that with respect to any untrue statement or omission made in any Preliminary Offering Circular, the indemnity agreement contained in this paragraph shall not inure to the benefit of any Underwriter (or to the benefit of any person controlling such Underwriter or to any officer, director, employee or agent of any Underwriter) from whom the person asserting any such Damages purchased the Shares concerned if both (A) a copy of the Firm Stock ("Directed Shares") will initially be reserved Time of Sale Information was not sent or given to such person at or prior to the written confirmation of the sale of such Shares to such person as required by the Underwriters for offer Act and sale (B) the untrue statement or omission in the Preliminary Offering Circular was corrected in the Time of Sale Information. In addition to officersits other obligations under this Section 8, directorsthe Company agrees that, employees as an interim measure during the pendency of any claim, action, investigation, inquiry or other proceeding arising out of or based upon any statement or omission, or any inaccuracy in the representations and consultants warranties of the Company and their family members and herein or failure to other persons having business relationships with the Company and perform its subsidiaries ("Directed Share Participants") upon the terms and conditions obligations hereunder, all as set forth in this Section 8, the Prospectus and in accordance with the rules and regulations of the National Association of Securities Dealers, Inc. Under no circumstances party against whom indemnification is being sought will Lehm▇▇ ▇▇▇thers Inc. reimburse each Underwriter on a quarterly basis for all reasonable legal or any Underwriter be liable to the Company or to any Directed Share Participant for any action taken or omitted to be taken in good faith other out-of-pocket expenses incurred in connection with investigating or defending any such Directed Share Programclaim, action, investigation, inquiry or other proceeding (to the extent documented by reasonably itemized invoices therefor), notwithstanding the absence of a judicial determination as to the propriety and enforceability of the obligation of the Company to reimburse each Underwriter for such expenses and the possibility that such payments might later be held to have been improper by a court of competent jurisdiction. To the extent that any Directed Shares such interim reimbursement payment is so held to have been improper, each Underwriter shall promptly return it to the person(s) from whom it was received. Any such interim reimbursement payments that are not affirmatively confirmed made to the Underwriters within 30 days of a request for purchase reimbursement shall bear interest compounded daily at a rate determined on the basis of the base lending rate announced from time to time by any Directed Share Participant on or immediately after the Wall Street Journal from the date of this Agreementsuch request. If any action or claim shall be brought against any Underwriter or any person controlling any Underwriter in respect of which indemnity may be sought against the Company, such Directed Shares Underwriter or such controlling person shall promptly notify in writing the party(s) against whom indemnification is being sought (the “indemnifying party” or “indemnifying parties”), and such indemnifying party(s) shall assume the defense thereof, including the employment of counsel reasonably acceptable to such Underwriter or such controlling person and the payment of all reasonable fees of and expenses incurred by such counsel. Such Underwriter or any such controlling person shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter or such controlling person, unless (i) the indemnifying party(s) has (have) agreed in writing to pay such fees and expenses, (ii) the indemnifying party(s) has (have) failed to assume the defense and employ counsel reasonably acceptable to the Underwriter or such controlling person or (iii) the named parties to any such action (including any impleaded parties) include both such Underwriter or such controlling person and the indemnifying party(s), and such Underwriter or such controlling person shall have been advised by its counsel that one or more legal defenses may be offered available to the public upon Underwriter that may not be available to the terms Company, or that representation of such indemnified party and conditions set forth any indemnifying party(s) by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the Prospectusindemnifying party(s) shall not have the right to assume the defense of such action on behalf of such Underwriter or such controlling person (but the Company shall not be liable for the fees and expenses of more than one counsel for the Underwriters and such controlling persons)). The Company agrees to pay all fees and disbursements incurred by indemnifying party(s) shall not be liable for any settlement of any such action effected without its (their several) written consent, but if settled with such written consent, or if there be a final judgment for the Underwriters plaintiff in connection with the Directed Share Program, including counsel fees and any stamp duties or other taxes incurred by the Underwriters in connection with the Directed Share Program. In connection with the offer and sale of the Directed Sharessuch action, the Company agrees, promptly upon a request in writing, indemnifying party(s) agree(s) to indemnify and hold harmless Lehm▇▇ ▇▇▇thers Inc. any Underwriter and the other Underwriters any such controlling person from and against any loss, claim, damage, expense, liability or expense by reason of such settlement or judgment, but in the case of a judgment only to the extent stated in the first paragraph of this Section 8. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Offering Statement and any person who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with respect to information furnished in writing by or on behalf of such Underwriter through you expressly for use in the Offering Statement, the Offering Circular, the Time of Sale Information, any Written Testing-the-Waters Communication or any Preliminary Offering Circular, or any amendment or supplement thereto. If any action or claim shall be brought or asserted against the Company, any of its directors, any of its officers or any such controlling person based on the Offering Statement, the Offering Circular, the Time of Sale Information or any Preliminary Offering Circular, or any amendment or supplement thereto, and in respect of which indemnity may be sought against any Underwriter pursuant to this paragraph, such Underwriter shall have the rights and duties given to the Company by the immediately preceding paragraph (except that if the Company shall have assumed the defense thereof such Underwriter shall not be required to do so, but may employ separate counsel therein and participate in the defense thereof, but the fees and expenses of such counsel shall be at such Underwriter’s expense), and the Company, its directors, any such officers and any such controlling persons, shall have the rights and duties given to the Underwriters by the immediately preceding paragraph. In any event, the Company will not, without the prior written consent of the Representative, settle or compromise or consent to the entry of any judgment in any proceeding or threatened claim, action, suit or proceeding in respect of which the indemnification may be sought hereunder (whether or not the Representative or any person who controls the Representative within the meaning of Section 15 of the Act or Section 20 of the Exchange Act is a party to such claim, action, suit or proceeding) unless such settlement, compromise or consent includes an unconditional release of all Underwriters and such controlling persons from all liability arising out of such claim, action, suit or proceeding. If the indemnification provided for in this Section 8 is unavailable or insufficient for any reason whatsoever to an indemnified party in respect of any Damages referred to herein, then an indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Damages (x) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand, and the Underwriters on the other hand, from the offering and sale of the Shares (or, in the case of Damages arising out of or based upon circumstances described in clauses (iii), (iv) and (v) of the first paragraph of this Section 8, from the offering and sale of the Directed Shares) or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) above but also the relative and several fault of the Company on the one hand, and the Underwriters on the other hand, in connection with the statements or omissions that resulted in such Damages as well as any other relevant equitable considerations. With respect to Damages arising out of or based upon circumstances described in clauses (i) arises out ofor (ii) of the first paragraph of this Section 8, or is based uponthe relative and several benefits received by the Company on the one hand, and the Underwriters on the other hand, shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Offering Circular; provided that, in the event that the Underwriters shall have purchased any Additional Shares hereunder, any determination of the relative benefits received by the Company or the Underwriters from the offering of the Shares shall include the net proceeds (before deducting expenses) received by the Company and the underwriting discounts and commissions received by the Underwriters, from the sale of such Additional Shares, in each case computed on the basis of the respective amounts set forth in the notes to the table on the cover page of the Offering Circular. With respect to Damages arising out of or based upon circumstances described in clauses (iii), (iv) or (v) of the first paragraph of this Section 8, the relative and several benefits received by the Company on the one hand, and the Underwriters on the other hand, shall be deemed to be in the same proportion as the total net proceeds from the offering of the Directed Shares (before deducted expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters with respect to the Directed Shares, in each case as set forth in the table on the cover page of the Offering Circular. The relative fault of the Company on the one hand, and the Underwriters on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the approval of the Company for distribution to Directed Share Participants in connection with the Directed Share Program or any omission or alleged omission to state therein a material fact relates to information supplied by the Company on the one hand, or by the Underwriters on the other hand and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 8 was determined by a pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the Damages referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, (x) with respect to Damages arising out of or based upon circumstances described in clauses (i) or (ii) of the first paragraph of this Section 8, no Underwriter shall be required to contribute any amount in excess of the amount of the underwriting commissions received by such Underwriter in connection with the Shares underwritten by it and distributed to the public and (y) with respect to Damages arising out of or based upon circumstances described in clauses (iii), (iv) and (v) of the first paragraph of this Section 8, no Underwriter shall be stated therein required to contribute any amount in excess of the amount of the underwriting commission received by such Underwriter in connection with the Directed Shares underwritten by it and distributed to Participants in the Directed Share Program. 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. The Underwriters’ obligations to contribute pursuant to this Section 8 are several in proportion to the respective numbers of Firm Shares set forth opposite their names in Schedule I hereto (or necessary such numbers of Firm Shares increased as set forth in Section 11 hereof) and not joint. Notwithstanding the second paragraph of this Section 8, any Damages for which an indemnified party is entitled to make indemnification or contribution under this Section 8 shall be paid by the statements therein not misleadingindemnifying party to the indemnified party as Damages are incurred after receipt of reasonably itemized invoices therefor. The indemnity, contribution and reimbursement agreements contained in this Section 8 and the representations and warranties of the Company set forth in this Agreement shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any Underwriter or any person controlling any Underwriter, the Company, its directors or officers or any person controlling the Company, (ii) arises acceptance of any Shares and payment therefor hereunder and (iii) any termination of this Agreement. A successor to any Underwriter or any person controlling any Underwriter, or to the Company, its directors or officers or any person controlling the Company, shall be entitled to the benefits of the indemnity, contribution and reimbursement agreements contained in this Section 8. It is agreed that any controversy arising out of the failure operation of the interim reimbursement arrangements set forth in the second paragraph of this Section 8, including the amounts of any Directed Share Program participant to pay for requested reimbursement payments and accept delivery the method of Directed Shares that the Participant agreed to purchase or (iii) is otherwise related determining such amounts, shall be settled by arbitration conducted pursuant to the Directed Share ProgramCode of Arbitration Procedure of FINRA. Any such arbitration must be commenced by service of a written demand for arbitration or written notice of intention to arbitrate, other than lossestherein electing the arbitration tribunal. In the event the party demanding arbitration does not make such designation of an arbitration tribunal in such demand or notice, claimsthen the party responding to said demand or notice is authorized to do so. Such arbitration would be limited to the operation of the interim reimbursement provisions contained in the second and fourth paragraphs of this Section 8, damages and would not resolve the ultimate propriety or liabilities (or enforceability of the obligation to reimburse expenses relating thereto) that are finally judicially determined to have resulted directly from is created by the bad faith or gross negligence provisions of Lehm▇▇ ▇▇▇thers Inc.the second paragraph of this Section 8.
Appears in 1 contract
Directed Share Program. It is understood that approximately [_________] 270,000 shares of the Firm Underwritten Stock ("Directed Shares") will initially be reserved by the Underwriters for offer and sale to officers, directors, employees and consultants of the Company and their family members and to other persons having business relationships with the Company and its subsidiaries ("Directed Share Participants") upon the terms and conditions set forth in the Prospectus and in accordance with the rules and regulations of the National Association NASD (the "Directed Share Program") to directors, officers, employees, business associates and related persons of Securities Dealersthe Company ("Directed Share Participants") who have heretofore delivered to you offers to purchase shares of Underwritten Stock in form satisfactory to you, Inc. and that any allocation of such Underwritten Stock among such persons will be made in accordance with timely directions received by you from the Company. Under no circumstances will Lehm▇▇ ▇▇▇thers Inc. or any Underwriter be liable to the Company or to any Directed Share Participant for any action taken or omitted to be taken in good faith in connection with such Directed Share Program. To It is further understood that to the extent that any Directed Shares are not affirmatively confirmed reconfirmed for purchase by any Directed Share Participant on or immediately after the date of this Agreement, such Directed Shares may be offered to the public upon as part of the terms and conditions set forth in the Prospectuspublic offering contemplated hereby. The Company agrees to pay all fees and disbursements incurred by the Underwriters in connection with the Directed Share Program, including counsel fees and any stamp duties or other taxes incurred by the Underwriters in connection with the Directed Share Program. In connection with the offer and sale of the Directed Shares, the Company agrees, promptly upon a request in writing, to indemnify and hold harmless Lehm▇▇ ▇▇▇thers Inc. and the other Underwriters from and against any loss, claim, damage, expense, liability or action which (i) arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the approval of the Company for distribution to Directed Share Participants in connection with the Directed Share Program or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) arises out of the failure of any Directed Share Program participant to pay for and accept delivery of Directed Shares that the Directed Share Participant agreed to purchase purchase, (iii) arises out of the failure of any Directed Share Participant that is also an employee of the Company to pay for and accept delivery by the end of the first day after the date of this Agreement any Directed Shares that were allocated to such employee Directed Share Participant or (iiiiv) is otherwise related to the Directed Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted directly from the bad faith or gross negligence of Lehm▇▇ ▇▇▇thers Inc.such Underwriter.
Appears in 1 contract
Directed Share Program. It is understood that approximately [_________] _ shares of the Firm Stock Initial Shares ("Directed Shares") will initially be reserved by the Underwriters under a directed share program ("Directed Share Program") for offer and sale to officers, directors, employees and consultants of the Company and their family members and to other persons having business relationships with the Company and its subsidiaries ("Directed Share Participants") upon the terms and conditions set forth in the Prospectus and in accordance with the rules and regulations of the National Association of Securities Dealers, Inc. Under no circumstances will Lehm▇▇ ▇▇▇thers Inc. the Representatives or any Underwriter be liable to the Company or to any Directed Share Participant for any action taken or omitted to be taken in good faith in connection with such Directed Share Program. To the extent that any Directed Shares are not affirmatively confirmed reconfirmed for purchase by any Directed Share Participant Participants on or immediately after the date of this Agreement, such Directed Shares may be offered to the public upon as part of the terms and conditions set forth in the Prospectuspublic offering contemplated hereby. The Company agrees to pay all reasonable fees and disbursements incurred by the Underwriters in connection with the Directed Share Program, including counsel fees and any stamp duties or other taxes incurred by the Underwriters in connection with the Directed Share Program. In connection with the offer and sale of the Directed Shares, the Company agrees, promptly upon a request in writing, to indemnify and hold harmless Lehm▇▇ ▇▇▇thers Inc. the Representatives and the other Underwriters from and against any loss, claim, damage, expense, liability or action which (i) arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the approval of the Company for distribution to Directed Share Participants in connection with the Directed Share Program or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) arises out of the failure of any Directed Share Program participant Participant to pay for and accept delivery of Directed Shares that the Participant agreed to purchase or (iii) is otherwise related to the Directed Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted directly from the bad faith or gross negligence of Lehm▇▇ ▇▇▇thers Inc.the Representatives.
Appears in 1 contract
Sources: Underwriting Agreement (Meadowbrook Insurance Group Inc)
Directed Share Program. It is understood that approximately [_________] shares of the Firm Stock ("Directed Shares"a) The Company will initially be reserved by the Underwriters for offer and sale to officers, directors, employees and consultants of the Company and their family members and to other persons having business relationships undertake a directed share program concurrently with the Company and its subsidiaries ("Directed Share Participants") upon Rights Offering in accordance with the terms and conditions set forth in the Prospectus and in accordance with the rules and regulations of the National Association of Securities Dealers, Inc. Under no circumstances will Lehm▇▇ ▇▇▇thers Inc. or any Underwriter be liable to the Company or to any Directed Share Participant for any action taken or omitted to be taken in good faith in connection with such Directed Share Program. To the extent that any Directed Shares are not affirmatively confirmed for purchase by any Directed Share Participant on or immediately after the date of this Agreement, such Directed Shares may be offered to the public upon the terms and conditions set forth disclosed in the Prospectus. The directed share program will commence on the same date as the Rights Offering and will expire on the Rights Offering Expiration Date.
(b) Directors, officers and employees who are not stockholders of the Company agrees as of the Record Date may subscribe to pay all fees and disbursements incurred purchase shares of Common Stock in the directed share program by delivery to Continental as specified in the Prospectus of (i) the form of subscription agreement required by the Underwriters Company (the "DSP Subscription Agreement"), duly executed by such person in accordance with and as provided by the terms and conditions of the DSP Subscription Agreement, together with (ii) the required Subscription Price, as disclosed in the Prospectus, of each share of Common Stock subscribed for in the DSP Subscription Agreement, in U.S. dollars by cashier's check or personal check, drawn on a U.S. bank, or wire transfer of immediately available funds, in each case payable to the order of Continental acting as subscription agent for the Company.
(c) Subscriptions in the directed share program must be properly delivered to Continental no later than the Rights Offering Expiration Time. For the purpose of determining the time of delivery of any materials to Continental in the directed share program, such delivery shall be deemed to occur when such materials are received by Continental as specified in the Prospectus. Continental will not issue or deliver certificates or statements of holding for shares subscribed for in the directed share program until payment in full therefor has been received and cleared. If a participant in the directed share program does not make timely payment of the full amount due in connection with such participant's subscription, Continental will consult with the Directed Share ProgramCompany in accordance with the following sentence as to the appropriate action to be taken. Irregular subscriptions not otherwise covered by specific instructions herein shall be submitted to an appropriate officer of the Company and handled in accordance with his or her instructions. Such instructions will be documented by Continental indicating the instructing officer and the date thereof.
(d) If the Company has determined in its sole discretion to issue any shares of Common Stock in the directed share program, including counsel fees then Continental shall, subject to prior consultation with and any stamp duties or other taxes incurred approval by the Underwriters Company, allot the shares issuable in connection with the Directed Share Programdirected share program to those persons who have properly delivered subscriptions to Continental in the directed share program. In connection with Subject to the offer and sale of the Directed Shares, the Company agrees, promptly upon a request in writing, to indemnify and hold harmless Lehm▇▇ ▇▇▇thers Inc. and the other Underwriters from and against any loss, claim, damage, expense, liability or action which (i) arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the prior approval of the Company, shares subscribed for in the directed share program will be allocated in the amounts of such subscriptions. If the number of shares for which subscriptions in the directed share program have been properly delivered to Continental is greater than the number of shares that the Company in its sole discretion chooses to make available for distribution purchase pursuant to Directed Share Participants the directed share program, then Continental shall allocate such number of shares in connection accordance with the Directed Share Program or any omission or alleged omission to state therein a material fact required instructions to be stated therein or necessary provided to make the statements therein not misleading, (ii) arises out it by an appropriate officer of the failure of Company.
(e) Any excess payment to be refunded by the Company to a participant in the directed share program will be mailed by Continental as soon as practicable following the Rights Offering Expiration Time and in any Directed Share Program participant to pay for and accept delivery of Directed Shares that event within ten (10) business days after the Participant agreed to purchase or (iii) is otherwise related to the Directed Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted directly from the bad faith or gross negligence of Lehm▇▇ ▇▇▇thers Inc.Rights Offering Expiration Time.
Appears in 1 contract
Sources: Subscription Agent Agreement (Trinity Capital Corp)
Directed Share Program. It is understood that approximately [_________] shares of the Firm Stock Shares ("Directed SharesDIRECTED SHARES") will initially be reserved by the Underwriters for offer and sale to officers, directors, employees and consultants of the Company and their family members and to other persons having business relationships with the Company and its subsidiaries or affiliates ("Directed Share ParticipantsDIRECTED SHARE PARTICIPANTS") upon the terms and conditions set forth in the Prospectus and in accordance with the rules and regulations of the Securities and Exchange Commission and the National Association of Securities Dealers, Inc. Inc.
(a) Under no circumstances will Lehm▇▇ ▇▇▇thers Inc. or any Underwriter be liable to the Company or to any Directed Share Participant for any action taken or omitted to be taken in good faith in connection with such Directed Share Program. To the extent that any Directed Shares are not affirmatively confirmed reconfirmed for purchase by any Directed Share Participant on or immediately after the date of this Agreement, such Directed Shares may be offered to the public upon as part of the terms and conditions set forth in the Prospectus. public offering contemplated hereby.
(b) The Company agrees to pay all reasonable fees and disbursements incurred by the Underwriters in connection with the Directed Share Program, including counsel fees fees, filing expenses and any stamp duties or other taxes incurred by the Underwriters in connection with the Directed Share Program. .
(c) In connection with the offer and sale of the Directed Shares, the Company agrees, promptly upon a request in writing, to indemnify and hold harmless Lehm▇▇ ▇▇▇thers Inc. and the other Underwriters each Underwriter from and against any loss, claim, damage, expense, liability or action which (i) arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the approval of the Company for distribution to Directed Share Participants in connection with the Directed Share Program or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) arises out of the failure of any Directed Share Program participant Participant to pay for and accept delivery of Directed Shares that the such Participant agreed to purchase purchase, or (iii) is otherwise related to the Directed Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted directly from the bad faith or gross negligence of Lehm▇▇ ▇▇▇thers Inc.directly
Appears in 1 contract
Directed Share Program. It is understood that approximately [_________] shares of The Company will cause the Firm Stock ("Directed Shares") will initially Shares to be reserved restricted from sale, transfer, assignment, pledge or hypothecation to such extent as may be required by the Underwriters for offer FINRA and sale to officersits rules, directors, employees and consultants of the Company and their family members and to other persons having business relationships with direct the Company and its subsidiaries ("Directed Share Participants") transfer agent to place stop transfer restrictions upon the terms and conditions set forth in the Prospectus and in accordance with the rules and regulations of the National Association of Securities Dealers, Inc. Under no circumstances will Lehm▇▇ ▇▇▇thers Inc. or any Underwriter be liable to the Company or to any Directed Share Participant for any action taken or omitted to be taken in good faith in connection with such Directed Share Program. To Shares for the extent that any Directed Shares are not affirmatively confirmed for purchase by any Directed Share Participant on or immediately period of 30 days after the date of this AgreementAgreement or any such longer period of time as may be required by the FINRA and its rules; and to comply with all applicable securities and other laws, such rules and regulations in each jurisdiction in which the Directed Shares may be are offered to the public upon the terms and conditions set forth in the Prospectus. The Company agrees to pay all fees and disbursements incurred by the Underwriters in connection with the Directed Share Program.
(b) Each of the Selling Shareholders agrees with the several Underwriters that:
(i) Such Selling Shareholder, severally and not jointly, will pay all expenses incident to the performance of their respective obligations under, and the consummation of the transactions contemplated by this Agreement, including counsel (A) any stamp duties, capital duties and stock transfer taxes, if any, payable upon the sale of the Offered Securities by such Selling Shareholder to the Underwriters, (B) the fees and any stamp duties or other taxes disbursements of their respective local counsel and accountants, except for the fees and expenses, if any, incurred by the Company’s counsel on behalf of the Selling Shareholders which will be borne by the Company and (C) to the extent applicable, any fees and expenses of the authorized agent for service of process in the State of New York, County of New York in any action arising out of or relating to this Agreement.
(ii) Such Selling Shareholder, severally and not jointly, will indemnify and hold harmless the Underwriters in connection with against any documentary, stamp or similar issue tax, including any interest and penalties, on the Directed Share Program. In connection with the offer creation, issue and sale of the Directed Offered Securities by such Selling Shareholder and on the execution and delivery of this Agreement. All payments to be made by each Selling Shareholder hereunder shall be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless such Selling Shareholder or the Company is compelled by law to deduct or withhold such taxes, duties or charges. In that event, a Selling Shareholder shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made.
(iii) Such Selling Shareholder agrees during the relevant Lock-Up Period not to (A) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of (collectively, “Transfer”), directly or indirectly, any Common Shares or ADSs or any securities convertible into or exercisable or exchangeable for Common Shares or ADSs or enter into a transaction which would have the same effect, (B) enter into any swap, hedge, or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Shares or ADSs, whether any such aforementioned transaction is to be settled by delivery of Common Shares, ADSs or such other securities, in cash or otherwise, (C) demand the Company agreesfiling of a registration statement pursuant to a shareholder’s agreement or otherwise, promptly upon a request in writingor (D) publicly disclose the intention to make any such offer, to indemnify and hold harmless Lehm▇▇ ▇▇▇thers Inc. and sale, pledge, or disposition, or enter into any such transaction, swap, hedge, or other arrangement, without the other Underwriters from and against any lossprior written consent of the Representatives. Notwithstanding the generality of this subsection (iii), claim, damage, expense, liability or action which none of (i) arises out of, or is based upon, any untrue statement or alleged untrue statement the sale of a material fact contained Common Shares in any material prepared the form of ADSs by or with the approval of the Company for distribution to Directed Share Participants in connection with the Directed Share Program or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleadingSelling Shareholders hereunder, (ii) arises out the automatic conversion of the failure Preferred Shares upon the consummation of any Directed Share Program participant to pay for and accept delivery of Directed Shares that the Participant agreed to purchase or Offering, (iii) is otherwise related to the Directed Share Program, other than losses, claims, damages sale of the Company’s ADSs acquired by the undersigned in open markets after the completion of the Offering or liabilities (or expenses relating theretoiv) that are finally judicially determined to have resulted the sale of the ADSs purchased directly from the bad faith Underwriters in the Offering shall be deemed a Transfer for purposes of this Lock-up Agreement. Notwithstanding the generality of this subsection (iii), and subject to the conditions below, the undersigned may transfer the Lock-up Securities, as set forth in (i) through (iii) below, without the prior consent of the Representatives, provided that (1) the Representatives receive a signed lock-up agreement for the balance of the Lock-up Period from each donee, trustee, or gross negligence transferee, as the case may be, (2) any such transfers are not required to be reported during the Lock-up Period in any public report or filing with the Commission and (3) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers during the Lock-up Period:
(i) a bona fide gift or gifts; or
(ii) to any trust for the direct or indirect benefit of Lehm▇▇ ▇▇▇thers Inc.the undersigned or the immediate family members of the undersigned; or
(iii) to the immediate family members or the affiliates of the undersigned (as the case may be). The initial Lock-Up Period for each Selling Shareholder will commence on the date hereof and will continue and include the date 180 days after the date hereof or such earlier date that the Representatives consent to in writing; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-up Period, the Company announces that it will make an earnings release or it becomes aware that material news about the Company will be released or a material event will occur during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18 day period beginning on the date of release of the earnings results or the material news or the occurrence of the material event, as applicable, unless the Representatives waive, in writing, such extension.
Appears in 1 contract
Directed Share Program. It is understood that approximately [_________] _ shares of the Firm Underwritten Stock ("Directed Shares") will initially be reserved by the Underwriters for offer and sale to officers, directors, employees and consultants of the Company and their family members and to other persons having business relationships with the Company and its subsidiaries ("Directed Share Participants") upon the terms and conditions set forth in the Prospectus and in accordance with the rules and regulations of the National Association NASD (the "Directed Share Program") to employees, directors and persons related to them, service providers and other third parties having business relationships with the Company ("Directed Share Participants") who have heretofore delivered to you offers to purchase shares of Securities DealersUnderwritten Stock in form satisfactory to you, Inc. and that any allocation of such Underwritten Stock among such persons will be made in accordance with timely directions received by you from the Company. Under no circumstances will Lehm▇▇ ▇▇▇thers Inc. or any Underwriter be liable to the Company or to any Directed Share Participant for any action taken or omitted to be taken in good faith in connection with such Directed Share Program. To It is further understood that to the extent that any Directed Shares are not affirmatively confirmed reconfirmed for purchase by any Directed Share Participant on or immediately after the date of this Agreement, such Directed Shares may be offered to the public upon as part of the terms and conditions set forth in the Prospectuspublic offering contemplated hereby. The Company agrees to pay all fees and disbursements incurred by the Underwriters in connection with the Directed Share Program, including reasonable counsel fees and any stamp duties or other taxes incurred by the Underwriters in connection with the Directed Share Program. In connection with the offer and sale of the Directed Shares, the Company agrees, promptly upon a request in writing, to indemnify and hold harmless Lehm▇▇ ▇▇▇thers Inc. and the other Underwriters from and against any loss, claim, damage, expense, liability or action which (i) arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the approval of the Company for distribution to Directed Share Participants in connection with the Directed Share Program or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) arises out of the failure of any Directed Share Program participant to pay for and accept delivery of Directed Shares that the Directed Share Participant agreed to purchase or purchase, (iii) arises out of the failure of any Directed Share Participant that is also an employee of the Company to pay for and accept delivery by the end of the first day after the date of this Agreement any Directed Shares that were allocated to such employee Directed Share Participant or (iv) is otherwise directly related to the Directed Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted directly from the bad faith or gross negligence of Lehm▇▇ ▇▇▇thers Inc.such Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Kinzan Com)