Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein. (b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations. (c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities. (d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice. (e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof. (f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act. (g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective. (h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 5 contracts
Samples: Registration Rights Agreement (Medical Discoveries Inc), Registration Rights Agreement (Medical Discoveries Inc), Registration Rights Agreement (Medical Discoveries Inc)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) . If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) . Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) . Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) . If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) . Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 3 contracts
Samples: Registration Rights Agreement (Medical Discoveries Inc), Registration Rights Agreement (Medical Discoveries Inc), Registration Rights Agreement (Medical Discoveries Inc)
Additional Terms. (a) The To the extent permitted by law, the Company shall will indemnify and hold harmless the Holders Investor, its agents, trustees and beneficiaries, partners, officers, directors, shareholders and members of the Investor, legal counsel and accountants for the Investor, and each underwriter, person who controls the Investor within the meaning of the Securities Act or the Exchange Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and or liabilities caused by (joint or several) to which they may become subject under the Securities Act, the Exchange Act or any state securities laws, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”): (i) any untrue statement or alleged untrue statement of a material fact contained in the such Registration Statement, including any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, preliminary prospectus or final prospectus contained therein or any prospectus included therein amendments or caused by any supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading, except insofar as or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities laws; and the Company will reimburse the indemnified party under this Section 4(a), for any reasonable legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the indemnity described herein shall not apply any loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by the Investor; provided further, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of the Investor, from whom the person asserting any such losses, claims, damages or liabilities are caused by any such untrue statement purchased shares in the offering, if a copy of the prospectus (as then amended or omission based upon information furnished or required to be furnished in writing to supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by the Holders or underwriter expressly for use therein, which indemnification shall include each on behalf of such Investor to such person, if anyrequired by law so to have been delivered, who controls any Holder at or underwriter within prior to the meaning written confirmation of the Securities Act sale of the shares to such person, and each officer, director, employee and agent of each Holder and underwriter; provided, however, that if the indemnification in this Section 4(aprospectus (as so amended or supplemented) with respect would have cured the defect giving rise to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from liability.
(b) To the sale of Registrable Securities extent permitted by law, the Holder or underwriterInvestor will severally, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale jointly, indemnify and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify hold harmless the Company, each of its directors, each officer signing of its officers who has signed the Registration Statement and registration statement, each person, if any, who controls the Company within the meaning of the Securities ActAct or the Exchange Act and legal counsel and accountants for the Company, from and against any and all losses, claims, damages and or liabilities caused by to which any untrue statement of a material fact contained in the Registration Statementforegoing persons may become subject, any registration statement under the Securities Act, the Exchange Act or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleadingsecurities laws, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are caused by any untrue statement or omission based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information specifically furnished by the Investor expressly for use in connection with such registration which consists solely of the information specified in Section 4(d); and the Investor will reimburse any person intended to be indemnified pursuant to the foregoing, for any legal or other expenses reasonably incurred by such person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the indemnity obligation of the Investor hereunder shall not in any event exceed the net proceeds received by the Investor from the offering giving rise to such liability.
(c) Promptly after receipt by an indemnified party of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel reasonably satisfactory to each party; provided, however, that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the reasonable fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this paragraph. After notice from an indemnifying party to such indemnified party of its election to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of this paragraph for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (i) the indemnified party shall have employed counsel in accordance with the first sentence of this paragraph or (ii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent; provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the indemnified party, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the indemnified party with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made.
(d) The Investor confirms, and the Company acknowledges, that the information to appear in the table in the section entitled “Principal and Selling Shareholders” or equivalently named section in the Registration Statement under the headings “Name of Beneficial Owner,” “Shares Beneficially Owned Prior to Offering – Number of Shares,” “Maximum Number of Shares Offered in this Offering,” or equivalently named headings in the Registration Statement and in the footnote related to such information pertaining to the Investor constitute the only information concerning the Investor that will be furnished in writing to the Company by or on behalf of the Holder or underwriter expressly Investor for use thereininclusion in the Registration Statement.
(be) If for any reason the indemnification provided for in the preceding section above is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage, liability damage or expense referred to thereinherein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunderhereunder, shall contribute to the amount paid or payable by the such indemnified party as a result of such loss, liability, claim, damage or liability expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party and on the indemnifying partyother in connection with the statements or omissions that resulted in such loss, liability, claim, damage or expense, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. No person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding any other provision of this Section, the Investor shall not be required to contribute any amount in excess of the amount by which the net proceeds received by such Investor from the sale of the shares of the Common Stock and Debentures in each case, pursuant to a Registration Statement, exceeds the amount of damages which the Investor has otherwise been required to pay by reason of such untrue or alleged untrue statement or alleged omission. The obligation of the Investor obliged to make contribution pursuant to this Section shall be several and not joint.
(cf) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder Investor shall impose upon any Holder the Investor any obligation to sell the Holder's Investor’s beneficially owned Registrable Securities.
(dg) Each HolderThe Investor, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder Investor receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(eh) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holderthe Investor, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(fi) Each Holder The Investor agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder Issuer in the Registration Statement or in order to promote compliance by the Company or the Holder Issuers with the Securities Act.
(gj) With a view to making available to the Investor the benefits of Rule 144 and Rule 144A promulgated under the Securities Act and other rules and regulations of the Commission that may at any time permit the Investor to sell securities of the Company to the public without registration, the Company covenants that it shall use commercially reasonable efforts to (i) file in a timely manner all reports and other documents required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder and (ii) take such further action as the Investor may reasonably request (including providing any information necessary to comply with Rule 144 and Rule 144A, if available with respect to resales of the Registrable Securities under the Securities Act), at all times, all to the extent required from time to time to enable the Investor to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (x) Rule 144 and Rule 144A (if available with respect to resales of the Registrable Securities) under the Securities Act, as such rules may be amended from time to time, or (y) any other rules or regulations now existing or hereafter adopted by the Commission.
(k) The Company agrees to pay all legal fees and expenses of Company’s counsel in connection with the review of all Securities and Exchange Commission (“SEC”) filings and exhibits, and all amendments with respect to said filings, and that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock Investor’s counsel will have a reasonable opportunity to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effectivereview all filings.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 2 contracts
Samples: Registration Rights Agreement (Material Technologies Inc /Ca/), Registration Rights Agreement (MATECH Corp.)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's ’s Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "“short sell"”, contract to "“short sell" ” or otherwise "“short sell" ” any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A B Stock or the exercise of the Warrants.
Appears in 2 contracts
Samples: Registration Rights Agreement (Global Epoint Inc), Subscription Agreement (Global Epoint Inc)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's ’s outstanding Common Stock to refrain from selling any shares of the Company's ’s Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A C Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's ’s outstanding Common Stock to refrain from selling any shares of the Company's ’s Common Stock until the Registration Statement has been declared effective.
(h) Each HolderHolder agrees with the Company that such Holder will not short sell the Company’s shares of Common Stock, on behalf either before or after the effective date of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities the Registration Statement. This covenant shall terminate concurrently with the termination of the Company, including, without limitation, shares of Common Stock that will be received as a result 's obligation to maintain the effectiveness of the conversion of the Series A Stock or the exercise of the WarrantsRegistration Statement pursuant to Section 2(a).
Appears in 1 contract
Samples: Registration Rights Agreement (Care Concepts I Inc /Fl/)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning Prior to recording of the Securities ActDeeds in the appropriate county records, who may purchase from the risk of loss or sell for any Holder, any Registrable Securities, from and against any damage to the Property and all lossesliability to third persons shall be borne by Conveying Parties, claimsexcept solely arising out of or relating to the acts or omissions of Lender Parties after the Closing Date upon the Property, damages and liabilities caused for which Lender Parties shall be responsible, which obligation shall survive Closing.
(b) Insurance policies for the Property maintained by any untrue statement of a material fact contained Conveying Parties will be maintained until, but terminated at midnight Arizona time on, the day of the recording of the Deeds in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriterappropriate county records; provided, however, that Lender Parties may, at their reasonable discretion, direct Conveying Parties to maintain, modify or amend any or all of such insurance policies as of the indemnification Closing Date by providing written notice to Conveying Parties on or prior to the fifteenth (15th) Business Day prior to the Closing Date. The Conveying Parties will cause the Lender Parties to be named as additional insureds on all such insurance policies and shall provide proof of such insurance to the Lender Parties within ten (10) Business Days prior to the Closing Date. Thereafter, the Transferee Entities will be responsible for insuring the Property. Any short rate cancellation premium refunds are assigned to and will be paid to the Transferee Entities.
(c) To the extent Noteholders and/or IMHFC are required to make certain filings pursuant to federal or state securities or other law, including one or more Form 8-Ks in connection with this Agreement and the transactions contemplated herein, Noteholders and/or IMHFC will use reasonable efforts to provide Sxxxxxx a reasonable opportunity to review such proposed filings or the key information intended to be included therein. The parties hereto agree to fully cooperate, prior to and after Closing, in accomplishing such filings and disclosures, without unreasonable cost or liability to Conveying Parties. This Section 4(a) with respect to any prospectus shall survive the Closing and shall not terminate.
(d) No Conveying Party may assign any right, title or interest in, to or under this Agreement without the prior written consent of the Lender Parties, which consent may be withheld in its sole discretion. Any attempted assignment in violation of this paragraph shall be null and void and shall constitute a default hereunder. This Agreement shall be binding upon and shall inure to the benefit of any Holder or underwriter (or the parties hereto and their respective successors and assigns, subject to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason foregoing provisions of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such noticeparagraph.
(e) If For one year following the Company fails Closing, Transferee Entities shall permit Conveying Parties reasonable access on five (5) days prior notice with reasonable frequency to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject all books and records pertaining to the terms Property and provisions hereofits operations for periods prior to the Closing Date to permit Borrower Parties to prepare tax returns and address other customary and reasonable pre-Closing matters.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities ActIntentionally Omitted.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.Intentionally Omitted..
Appears in 1 contract
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best commercially reasonable efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A D Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. (a) The Company Lessee hereby acknowledges that it has examined each and every part and parcel of the described premises, including any property or fixtures included therein, and acknowledges that Lessee is in the better position to know the condition of the described premises and property or fixtures contained therein by virtue of its inspection of the described premises. The Lessee hereby acknowledges that the described premises are in good condition and free from defects or hazards, whether latent or obvious, and Lessee is satisfied that such condition is good and sufficient for the purposes and duration for which the Lessee proposed to utilize said described premises. The Lessee further acknowledges that it did not rely on any representations or warranties from the Lessor in concluding that the condition of the described premises is good, free from defects or hazards of all kinds, and is sufficient for the purposes and duration for which the Lessee proposed to utilize said demised premises. The rights of the Lessee under this Lease shall be subject and subordinate to the lien of any bona fide encumbrance or other like instrument whereby the Lessor may place the described premises or this agreement as security for the payment of money or other obligation. Lessee for itself and on behalf of its legal representatives, waives, releases and forever discharges Lessor and its officers, employees and agents, committees and representatives and their successors and assigns of and from every and all claims, actions, and causes of action for any personal injury, including death, or property damage, which may be suffered or sustained by anyone entering onto the described premises on behalf of, at the request of or as a guest of Xxxxxx and agrees to indemnify and hold harmless Lessor from any such claims or causes of action by whomever or wherever made, including costs and expenses of legal defense through all trial and appellate proceedings in the Holders event a claim is asserted. Xxxxxx agrees and each underwriterunderstands that indemnification under this provision includes all claims, within damages, all costs and attorney’s fees through and including all trial and appellate proceedings and further includes any costs and attorneys’ fees incurred in establishing Xxxxxx’s right and entitlement to indemnification under this provision. In the meaning event of litigation between the Securities Actparties hereto for actions arising under this lease or related to enforcement of same, who may purchase from the prevailing party shall be entitled to recover all costs and expenses including, but not limited to, attorney’s fees and costs through all trial and appellate proceedings, including those related to entitlement to fees. If any term or sell for provision of this lease, or the application thereof to any Holderperson or circumstances shall, to any Registrable Securitiesextent, from be held invalid or unenforceable, to remainder of this lease, or the application of such terms or provision, to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected, and against every other term and provision of this lease shall be deemed valid and enforceable to the extent permitted by law. If Lessee is required to provide insurance under this lease, Lessee hereby waives any and all lossesrights to Subrogation against the Lessor, claimsits officers, damages employees and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed agents for each required policy. When required by the Company under insurer, or should a policy condition not permit an insured to enter into a pre-loss agreement to waive subrogation without an endorsement, then Xxxxxx shall agree to notify the Securities Act insurer and request the policy be endorsed with respect a Waiver of Transfer of Rights of Recovery Against Others, or its equivalent. This Waiver of Subrogation requirement shall not apply to any policy, which a condition to the registration of the Registrable Securities, any post-effective amendment to policy specifically prohibits such registration statementsan endorsement, or any prospectus included therein or caused by any omission to state therein voids coverage should Lessee enter into such an agreement on a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use thereinpre-loss basis.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Samples: Commercial Lease Agreement
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or 136 required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock Stock, except under Rule 144, until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock Debentures or the exercise of the Warrants.
Appears in 1 contract
Samples: Registration Rights Agreement (Energy & Engine Technology Corp)
Additional Terms. (a) The To the extent permitted by law, the Company shall will indemnify and hold harmless the Holders Investor, its agents, trustees and beneficiaries, partners or officers, directors and shareholders of the Investor, legal counsel and accountants for the Investor, and each underwriter, person who controls the Investor within the meaning of the Securities Act or the Exchange Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and or liabilities caused by (joint or several) to which they may become subject under the Securities Act, the Exchange Act or any state securities laws, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"): (i) any untrue statement or alleged untrue statement of a material fact contained in the such Registration Statement, including any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, preliminary prospectus or final prospectus contained therein or any prospectus included therein amendments or caused by any supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading, except insofar as or (iii) any Violation or alleged Violation by the Company of the Securities Act, the Exchange Act, any state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities laws; and the Company will reimburse the indemnified party under this Section 4(a), for any reasonable legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the indemnity described herein shall not apply any loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by the Investor; provided further, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of the Investor, from whom the person asserting any such losses, claims, damages or liabilities are caused by any such untrue statement purchased shares in the offering, if a copy of the prospectus (as then amended or omission based upon information furnished or required to be furnished in writing to supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by the Holders or underwriter expressly for use therein, which indemnification shall include each on behalf of such Investor to such person, if anyrequired by law so to have been delivered, who controls any Holder at or underwriter within prior to the meaning written confirmation of the Securities Act sale of the shares to such person, and each officer, director, employee and agent of each Holder and underwriter; provided, however, that if the indemnification in this Section 4(aprospectus (as so amended or supplemented) with respect would have cured the defect giving rise to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from liability.
(b) To the sale of Registrable Securities extent permitted by law, the Holder or underwriterInvestor will severally, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale jointly, indemnify and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify hold harmless the Company, each of its directors, each officer signing of its officers who has signed the Registration Statement and registration statement, each person, if any, who controls the Company within the meaning of the Securities ActAct or the Exchange Act and legal counsel and accountants for the Company, from and against any and all losses, claims, damages and or liabilities caused by to which any untrue statement of a material fact contained in the Registration Statementforegoing persons may become subject, any registration statement under the Securities Act, the Exchange Act or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleadingsecurities laws, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are caused by any untrue statement or omission based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information specifically furnished by the Investor expressly for use in connection with such registration which consists solely of the information specified in Section 4(d); and the Investor will reimburse any person intended to be indemnified pursuant to the foregoing, for any legal or other expenses reasonably incurred by such person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the indemnity obligation of the Investor hereunder shall not in any event exceed the net proceeds received by the Investor from the offering giving rise to such liability.
(c) Promptly after receipt by an indemnified party of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel reasonably satisfactory to each party; provided, however, that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the reasonable fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this paragraph. After notice from an indemnifying party to such indemnified party of its election to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of this paragraph for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (i) the indemnified party shall have employed counsel in accordance with the first sentence of this paragraph or (ii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent; provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the indemnified party, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the indemnified party with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made.
(d) The Investor confirms, and the Company acknowledges, that the information to appear in the table in the section entitled "Principal and Selling Shareholders" or equivalently named section in the Registration Statement under the headings "Name of Beneficial Owner," "Shares Beneficially Owned Prior to Offering - Number of Shares," "Maximum Number of Shares Offered in this Offering," or equivalently named headings in the Registration Statement and in the footnote related to such information pertaining to the Investor constitute the only information concerning the Investor that will be furnished in writing to the Company by or on behalf of the Holder or underwriter expressly Investor for use thereininclusion in the Registration Statement.
(be) If for any reason the indemnification provided for in the preceding section above is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage, liability damage or expense referred to thereinherein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunderhereunder, shall contribute to the amount paid or payable by the such indemnified party as a result of such loss, liability, claim, damage or liability expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party and on the indemnifying partyother in connection with the statements or omissions that resulted in such loss, liability, claim, damage or expense, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. No person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding any other provision of this Section, the Investor shall not be required to contribute any amount in excess of the amount by which the net proceeds received by such Investor from the sale of the shares of the Common Stock issued upon conversion of the Debenture or sale of the shares of Common Stock issued upon exercise of the Warrants, in each case pursuant to a Registration Statement exceeds the amount of damages which the Investor has otherwise been required to pay be reason of such untrue or alleged untrue statement or alleged omission. The obligation of the Investor obliged to make contribution pursuant to this Section shall be several and not joint.
(cf) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder Investor shall impose upon any Holder the Investor any obligation to sell the HolderInvestor's beneficially owned Registrable Securities.
(dg) Each HolderThe Investor, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder Investor receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(eh) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holderthe Investor, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(fi) Each Holder The Investor agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder Issuer in the Registration Statement or in order to promote compliance by the Company or the Holder Issuers with the Securities Act.
(gj) The With a view to making available to the Investor the benefits of Rule 144 and Rule 144A promulgated under the Securities Act and other rules and regulations of the Commission that may at any time permit the Investor to sell securities of the Company agrees to the public without registration, the Company covenants that it shall cause each of its directorsuse commercially reasonable efforts to (i) file in a timely manner all reports and other documents required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder and (ii) take such further action as the Investor may reasonably request (including providing any information necessary to comply with Rule 144 and Rule 144A, officers and shareholders owning ten percent (10%) or more if available with respect to resales of the Company's outstanding Common Stock Registrable Securities under the Securities Act), at all times, all to refrain the extent required from selling any shares time to time to enable the Investor to sell Registrable Securities without registration under the Securities Act within the limitation of the Company's Common Stock until the Registration Statement has been declared effective.
exemptions provided by (hx) Each Holder, on behalf of itself Rule 144 and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer Rule 144A (if available with respect to "short sell", contract to "short sell" or otherwise "short sell" any securities resales of the CompanyRegistrable Securities) under the Securities Act, includingas such rules may be amended from time to time, without limitation, shares of Common Stock that will be received as a result of or (y) any other rules or regulations now existing or hereafter adopted by the conversion of the Series A Stock or the exercise of the Warrants.Commission
Appears in 1 contract
Samples: Registration Rights Agreement (Black Family 1997 Trust)
Additional Terms. (a) The RSUs, and where noted the Redeemed RSU Value, shall be subject to the following additional terms: • The Units issued in respect of the RSUs granted hereunder shall be registered in Holder’s name on the books of the Company during the Lock-Up Period and for such additional time as the Committee determines appropriate in its reasonable discretion. Any certificates representing the Units delivered to Holder shall indemnify be subject to such stop transfer orders and hold harmless other restrictions as the Holders Committee may deem advisable under the rules, regulations, and each underwriter, within the meaning other requirements of the Securities Act, who may purchase from or sell for any Holderand Exchange Commission, any Registrable Securitiesstock exchange upon which such units are listed, from and against any applicable federal or state laws, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions as the Committee deems appropriate. • Holder shall be the record owner of the Units issued in respect of the RSUs until or unless such Units are repurchased or otherwise sold or transferred in accordance with the terms of the Plan, and as record owner shall generally be entitled to all losses, claims, damages and liabilities caused by any untrue statement rights of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act Member with respect to the registration Units issued in respect of the Registrable SecuritiesRSUs. • Upon issuance of Units in respect of the RSUs and payment of any Redeemed RSU Value, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact Holder shall be required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each personsatisfy applicable withholding tax obligations, if any, who controls any as provided in the Plan provided, that, Holder or underwriter within may elect, by notifying the meaning Company in writing, to have such withholding tax obligations for the RSUs satisfied through the use of Units, such that the number of Units received upon settlement of the Securities Act and each officer, director, employee and agent RSUs hereunder shall be reduced by a number of each Holder and underwriter; provided, however, that Units with an aggregate Fair Market Value on the indemnification in this Section 4(a) with respect date of settlement equal to any prospectus shall not inure federal, state or local income or other taxes required by law to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter be withheld by the Company prior (as determined by the Company). • This Restated Award Agreement does not confer upon Holder any right to continue as an employee or service provider of the Service Recipient or any other member of the Company Group. • This Restated Award Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware, without regard to the subject sale principles of conflicts of law thereof. • Holder understands that the RSUs and the subsequent prospectus was not delivered Redeemed RSU Value are intended to be either exempt from Section 409A and 457A of the Code or sent by compliant with the Holder or underwriter requirements of Section 409A and 457A of the Code to the purchaser prior to greatest extent possible and the RSUs and the Redeemed RSU Value will be administered and interpreted in accordance with such sale and provided further, that intent. In no event whatsoever shall the Company shall not be obligated to so indemnify any Holder or any such underwriter of its affiliates be liable for any additional tax, interest or penalties that may be imposed on Holder as a result of Section 409A of the Code or any damages for failing to comply with Section 409A or 457A of the Code (other than for withholding obligations or other person referred obligations applicable to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each personemployers, if any, who controls under Section 409A of the Code). • Holder agrees that the Company within may deliver by email (at the meaning of current email address on file with the Securities Act, from and against any and Company) all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing documents relating to the Company by Plan, the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any lossRSUs, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
Redeemed RSU Value (g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares a copy of Common Stock the Plan) and all other documents that the Company is required to deliver to its security holders (including, without limitation, disclosures that may be required by the Securities and Exchange Commission). Holder also agrees that the Company may deliver these documents by posting them on a website maintained by the Company or by a third party under contract with the Company. If the Company posts these documents on a website, it shall notify Holder by email (at the current email address on file with the Company) or such other reasonable manner as then determined by the Company. • If Holder is married on the Date of Grant and resides in a community property state, the grant of the RSUs hereunder is conditional upon, and will be received effective only after, Holder’s spouse has duly executed the spousal consent on the signature page hereto or in a form acceptable to the Company, with an effective date as a result of the conversion Date of Grant. • This Restated Award Agreement and the Plan constitute the entire understanding and agreement of the Series A Stock parties hereto and supersede all prior negotiations, discussions, correspondence, communications, understandings, and agreements (whether oral or written and whether express or implied) between the exercise Company and Holder relating to the subject matter of this Restated Award Agreement. Without limiting the Warrantsforegoing, to the extent Holder has entered into an employment or similar agreement with the Company or any of its affiliates, and the terms noted in such employment or similar agreement are inconsistent with or conflict with this Restated Award Agreement, then the terms of this Restated Award Agreement will supersede and be deemed to amend and modify the inconsistent or conflicting terms set forth in such employment or similar agreement.
Appears in 1 contract
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder Holders and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder Holders or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder Holders or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder Holders or underwriter to the purchaser Holders prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder Holders or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder Holders or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder Holders shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each HolderHolders, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder Holders receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best commercially reasonable efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees Holders agree to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder Holders in the Registration Statement or in order to promote compliance by the Company or the Holder Holders with the Securities Act.
(g) The Holders agree with the Company agrees that it shall cause each such Holders will not short sell the Company's shares of its directorsCommon Stock, officers either before or after the effective date of the Registration Statement, and shareholders owning ten the Holders agree that they will not collectively sell on any given day a number of shares of Common Stock in excess of fifteen percent (1015%) of the Average Dollar Daily Trading Volume for the prior fifty (50) trading days as reported by BigCharts.com or more an other nationally recognized reporting service. Xxxx covenant shall terminate concurrently with the termination of the Company's outstanding Common Stock obligation to refrain from selling any shares maintain the effectiveness of the Company's Common Stock until the Registration Statement has been declared effectivepursuant to Section 2(a).
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Teton Petroleum Co)
Additional Terms. (a) The Company shall indemnify Tenant specifically acknowledges and hold harmless agrees that Landlord will sell and Tenant will purchase the Holders Premises on an "as is with all faults" basis, subject to all exceptions to and each underwriterdefects of title, within whether or not of record (but subject also to Tenant's rights and Landlord's obligations as set forth below), and that Tenant will not rely on nor will Landlord or any of its Affiliates be deemed to have made, any representations or warranties of any kind, express or implied including, without limitation, those in connection with the meaning physical condition of the Securities ActPremises (including, who may purchase from or sell for any Holderwithout limitation, any Registrable Securitiesmatters involving Hazardous Substances or compliance with any Laws), from or the nature of title to the Premises, or the advisability of Tenant's purchase of the Premises). However, until and against unless Tenant otherwise agrees in writing or defaults Landlord will not voluntarily execute any and all lossesdocuments affecting title that materially adversely affect Tenant's operations or that render title to the Premises unmarketable (but easements, claimsdedications or other documents for access, damages and liabilities caused by drainage, utilities or services (including cabling), curb cuts, or as otherwise may be needed to comply with applicable Laws or to enable Landlord to meet its obligations under this Lease or in connection with the construction of any untrue statement new building(s) or the enlargement of the Building per this Lease, will not be deemed to be violations of this restriction). If this restriction is violated after the exercise of a material fact contained Purchase Option, Tenant shall have the right to terminate that Purchase Option without liability and receive the Deposit back. Notwithstanding the foregoing, even if Tenant has validly exercised a Purchase Option, Tenant shall have the right to terminate that Purchase Option without liability (except for Landlord's out-of-pocket costs) and shall not be required to close the purchase if, after the exercise of the Purchase Option but prior to closing, there is a casualty that causes damage of the type and to the extent described in Section 16.2(b)(x) such that Tenant otherwise would have the right to terminate this Lease, and in the Registration Statement, any other registration statement filed reasonable judgement of a qualified independent contractor hired by Landlord it will take more than two (2) years from the Company under the Securities Act with respect to the registration date of the Registrable Securitiesdamage to restore access or restore or replace the destroyed parking spaces or substantially complete the repairs that Landlord would have been required to make, any post-effective amendment and Tenant notifies Landlord of its intent to such registration statementsterminate within thirty (30) days after receiving the notice from Landlord's contractor, which shall be provided as soon as reasonably practicable after the damage occurs. If these circumstances occur, the closing date shall be extended as necessary to accommodate this thirty (30)-day period. If Tenant does not so terminate, or any prospectus included therein or caused by any omission if Tenant is not permitted to state therein so terminate as a material fact required to be stated therein or necessary to make the statements therein not misleadingresult of a casualty, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect closing Landlord will assign to any prospectus shall not inure Tenant all casualty insurance proceeds otherwise payable to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) Landlord on account of any such loss, claim, the damage or liability arising from and all rights and claims in connection therewith (other than those which Landlord was entitled to receive for the sale of Registrable Securities by period and/or for the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company work and services performed prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter closing). Notwithstanding anything to the purchaser contrary, if Landlord is in the process of repairing or rebuilding casualty damage and Tenant subsequently validly exercises a Purchase Option: Landlord will continue the process of repairing or rebuilding as otherwise required in this Lease until the closing date under the Purchase Option; Tenant will be deemed to have waived its right to terminate this Lease under Article 16, and its right to terminate the Purchase Option in connection with that casualty or any repairs or rebuilding in connection therewith; Landlord will assign to Tenant as of the closing all casualty insurance proceeds otherwise payable to Landlord on account of the damage and all rights and claims in connection therewith (other than those which Landlord was entitled to receive for the period and/or for the work and services performed prior to such sale the closing), and provided further, that Landlord shall assign to Tenant and Tenant shall assume all rights and Liabilities of Landlord under the Company contracts entered into in connection with the repair or rebuilding to the extent assignable and Tenant shall not indemnify Landlord and its Affiliates for and hold them harmless from all Liabilities in connection therewith; and Landlord shall be obligated to so indemnify any Holder continue to repair or any such underwriter or other person referred rebuild after the closing date only if and to above unless the Holder or underwriter or other person, as the case may be, shall extent actually agreed to by Landlord and Tenant in good faith and in writing at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use thereintime.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault As of the indemnified party closing, Tenant and the indemnifying partyits Affiliates will be deemed to have released and discharged Landlord and its Affiliates from, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant and to this Agreement nor the making have waived, all Liabilities of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holdertype, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement known or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Companyunknown, including, without limitation, shares Liabilities under or in connection with this Lease and/or the Premises (except as set forth in the last sentence of Common Stock Subsection (c) below). As a condition to closing, Landlord may require that will be received Landlord's Mortgagees release Landlord and its Affiliates from Liabilities under or in connection with any Superior Leases or Mortgages. From ADDENDUM #4 - - and after the closing, Tenant shall indemnify, defend and hold Landlord free and harmless from all Liabilities under or in connection with this Lease and/or the Premises and/or the purchase thereof (except as set forth in the last sentence of Subsection (c) below).
(c) Time is of the essence in this Addendum. If Tenant defaults hereunder after the closing under a Purchase Option or Tenant or Landlord defaults under any of the documents delivered by it in connection therewith, in addition to any rights and remedies available to each of the respective parties, each party shall have all rights and remedies at law and in equity, all of which are cumulative and not exclusive, including, without limitation, the right to require specific performance. The exercise of a Purchase Option or any closing as a result thereof shall not relieve Tenant or Landlord from any Liabilities for any defaults under this Lease, nor will they extinguish Liabilities for any indemnities or other obligations that survive pursuant to the terms of the conversion rest of this Lease or this Addendum.
(d) Notwithstanding anything to the contrary, as of the Series A Stock date of the first occurrence of any of the following, at Landlord's election all of Tenant's rights and Landlord's obligations under or in connection with this Addendum will lapse and become null and void upon:
(i) The expiration of the Lease term (as validly extended) or termination of this Lease in accordance with its terms prior to the exercise of a Purchase Option any closing thereunder; or
(ii) The bona fide purchase or other acquisition of all or substantially all of the WarrantsPremises by any person or entity (including, without limitation, Tenant or its Affiliates) other than by any of Landlord's Control Affiliates prior to the exercise of a Purchase Option and other than any sale or conveyance which is prohibited under this Lease; or
(iii) The failure by Tenant to have closed on and acquired title to the leased to Tenant under the 100 Minuteman Lease in accordance with the terms thereof before the date that Tenant is required to close (or, if earlier, actually closes) its purchase of the Premises following its exercise of a Purchase Option hereunder, but only in the event that such failure is due to the fault or delay of Tenant .
(e) Notwithstanding anything to the contrary, Tenant's rights and Landlord's obligations under or in connection with this Addendum will not be binding on and will not affect or otherwise apply in any way to Landlord's Mortgagees or their successors, assigns and purchasers, or their respective Affiliates, whether or not they take title to or acquire all or substantially all of the Premises.
Appears in 1 contract
Samples: Lease (Picturetel Corp)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders Holder and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders Holder or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's ’s Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's ’s outstanding Common Stock to refrain from selling any shares of the Company's ’s Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "“short sell"”, contract to "“short sell" ” or otherwise "“short sell" ” any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A E Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the such Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the such Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the such Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the such Holder or underwriter expressly for use therein.
(b) The Holders shall jointly and severally indemnify and hold harmless the Company, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any material untrue statement or material omission based upon information furnished in writing to the Company by the Holders expressly for use therein.
(c) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(cd) Promptly after receipt by an indemnified party under this Section 4 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 4, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential conflict of interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of liability to the indemnified party under this Section 4 only to the extent the indemnifying party is prejudiced as a result thereof.
(e) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the any Holder shall impose upon any Holder any obligation to sell the such Holder's Registrable Securities.
(df) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Postpost-Effective effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the such Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(eg) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof, so that the registration of such unsold Registered Securities is maintained for a number of days beyond the Expiration Date equal to the number of days that such Holder is unable to sell pursuant to Section 4(f) above.
(fh) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the such Holder in the Registration Statement or in order to promote compliance by the Company or the such Holder with the Securities Act.
(gi) The Company agrees that it shall cause each of Each Holder, by its directors, officers and shareholders owning ten percent (10%) or more acceptance of the Company's outstanding Common Stock Registrable Securities, agrees to refrain from selling any shares cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of the Company's Common Stock until the a Registration Statement has been declared effectivehereunder.
(hj) Each Holder, on behalf of itself and itself, its affiliates, its successors and assigns and any other direct or indirect transferee holding any of the Warrants, the Series B Stock or the Registrable Securities, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" or encourage others to "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A B Stock or the exercise of the Warrants. For purposes of this Agreement, "short selling" shall include any sale, any trade in any option or other derivative security, any hedging transaction relating to the securities of the Company or any transaction intended to affect the price of the Company's common stock.
(k) If requested in writing by the Company and the managing underwriter of an underwritten registered public offering by the Company of its Common Stock, the Holders shall agree not to sell or otherwise transfer or dispose of any Common Stock of the Company held by such Holders (other than those included in the registration statement) for a period not to exceed 180 days following the effective date of a registration statement of the Company filed under the Securities Act, provided that all officers and directors of the Company enter into similar agreements identical in terms to that of the Holders.
Appears in 1 contract
Samples: Registration Rights Agreement (AHPC Holdings, Inc.)
Additional Terms. (a) The Company shall indemnify Tenant specifically acknowledges and hold harmless agrees that Landlord will sell and Tenant will purchase the Holders Premises on an "as is with all faults" basis, subject to all exceptions to and each underwriterdefects of title, within whether or not of record (but subject also to Tenant's rights and Landlord's obligations as set forth below), and that Tenant will not rely on nor will Landlord or any of its Affiliates be deemed to have made, any representations or warranties of any kind, express or implied including, without limitation, those in connection with the meaning physical condition of the Securities ActPremises (including, who may purchase from or sell for any Holderwithout limitation, any Registrable Securitiesmatters involving Hazardous Substances or compliance with any Laws), from or the nature of title to the Premises, or the advisability of Tenant's purchase of the Premises). However, until and against unless Tenant otherwise agrees in writing or defaults Landlord will not voluntarily execute any and all lossesdocuments affecting title that materially adversely affect Tenant's operations or that render title to the Premises unmarketable (but easements, claimsdedications or other documents for access, damages and liabilities caused by drainage, utilities or services (including cabling), curb cuts, or as otherwise may be needed to comply with applicable Laws or to enable Landlord to meet its obligations under this Lease or in connection with the construction of any untrue statement new building(s) or the enlargement of the Building per this Lease, will not be deemed to be violations of this restriction). If this restriction is violated after the exercise of a material fact contained Purchase Option, Tenant shall have the right to terminate that Purchase Option without liability and receive the Deposit back. Notwithstanding the foregoing, even if Tenant has validly exercised a Purchase Option, Tenant shall have the right to terminate that Purchase Option without liability (except for Landlord's out-of-pocket costs) and shall not be required to close the purchase if, after the exercise of the Purchase Option but prior to closing, there is a casualty that causes damage of the type and to the extent described in Section 16.2(b)(x) such that Tenant otherwise would have the right to terminate this Lease, and in the Registration Statement, any other registration statement filed reasonable judgement of a qualified independent contractor hired by Landlord it will take more than two (2) years from the Company under the Securities Act with respect to the registration date of the Registrable Securitiesdamage to restore access or restore or replace the destroyed parking spaces or substantially complete the repairs that Landlord would have been required to make, any post-effective amendment and Tenant notifies Landlord of its intent to such registration statementsterminate within thirty (30) days after receiving the notice from Landlord's contractor, which shall be provided as soon as reasonably practicable after the damage occurs. If these circumstances occur, the closing date shall be extended as necessary to accommodate this thirty (30)-day period. If Tenant does not so terminate, or any prospectus included therein or caused by any omission if Tenant is not permitted to state therein so terminate as a material fact required to be stated therein or necessary to make the statements therein not misleadingresult of a casualty, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect closing Landlord will assign to any prospectus shall not inure Tenant all casualty insurance proceeds otherwise payable to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) Landlord on account of any such loss, claim, the damage or liability arising from and all rights and claims in connection therewith (other than those which Landlord was entitled to receive for the sale of Registrable Securities by period and/or for the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company work and services performed prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter closing). Notwithstanding anything to the purchaser contrary, if Landlord is in the process of repairing or rebuilding casualty damage and Tenant subsequently validly exercises a Purchase Option: Landlord will continue the process of repairing or rebuilding as otherwise required in this Lease until the closing date under the Purchase Option; Tenant will be deemed to have waived its right to terminate this Lease under Article 16, and its right to terminate the Purchase Option in connection with that casualty or any repairs or rebuilding in connection therewith; Landlord will assign to Tenant as of the closing all casualty insurance proceeds otherwise payable to Landlord on account of the damage and all rights and claims in connection therewith (other than those which Landlord was entitled to receive for the period and/or for the work and services performed prior to such sale the closing), and provided further, that Landlord shall assign to Tenant and Tenant shall assume all rights and Liabilities of Landlord under the Company contracts entered into in connection with the repair or rebuilding to the extent assignable and Tenant shall not indemnify Landlord and its Affiliates for and hold them harmless from all Liabilities in connection therewith; and Landlord shall be obligated to so indemnify any Holder continue to repair or any such underwriter or other person referred rebuild after the closing date only if and to above unless the Holder or underwriter or other person, as the case may be, shall extent actually agreed to by Landlord and Tenant in good faith and in writing at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use thereintime.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault As of the indemnified party closing, Tenant and the indemnifying partyits Affiliates will be deemed to have released and discharged Landlord and its Affiliates from, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant and to this Agreement nor the making have waived, all Liabilities of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holdertype, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement known or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Companyunknown, including, without limitation, shares Liabilities under or in connection with this Lease and/or the Premises (except as set forth in the last sentence of Common Stock Subsection (c) below). As a condition to closing, Landlord may require that will be received Landlord's Mortgagees release Landlord and its 11 Affiliates from Liabilities under or in connection with any Superior Leases or Mortgages. From and after the closing, Tenant shall indemnify, defend and hold Landlord free and harmless from all Liabilities under or in connection with this Lease and/or the Premises and/or the purchase thereof (except as set forth in the last sentence of Subsection (c) below).
(c) Time is of the essence in this Addendum. If Tenant defaults hereunder after the closing under a Purchase Option or Tenant or Landlord defaults under any of the documents delivered by it in connection therewith, in addition to any rights and remedies available to each of the respective parties, each party shall have all rights and remedies at law and in equity, all of which are cumulative and not exclusive, including, without limitation, the right to require specific performance. The exercise of a Purchase Option or any closing as a result thereof shall not relieve Tenant or Landlord from any Liabilities for any defaults under this Lease, nor will they extinguish Liabilities for any indemnities or other obligations that survive pursuant to the terms of the conversion rest of this Lease or this Addendum.
(d) Notwithstanding anything to the contrary, as of the Series A Stock date of the first occurrence of any of the following, at Landlord's election all of Tenant's rights and Landlord's obligations under or in connection with this Addendum will lapse and become null and void upon:
(i) The expiration of the Lease term (as validly extended) or termination of this Lease in accordance with its terms prior to the exercise of a Purchase Option or any closing thereunder; or
(ii) The bona fide purchase or other acquisition of all or substantially all of the WarrantsPremises by any person or entity (including, without limitation, Tenant or its Affiliates) other than by any of Landlord's Control Affiliates prior to the exercise of a Purchase Option and other than any sale or conveyance which is prohibited under this Lease; or
(iii) [INTENTIONALLY OMITTED]
(e) Notwithstanding anything to the contrary, Tenant's rights and Landlord's obligations under or in connection with this Addendum will not be binding on and will not affect or otherwise apply in any way to Landlord's Mortgagees or their successors, assigns and purchasers, or their respective Affiliates, whether or not they take title to or acquire all or substantially all of the Premises.
Appears in 1 contract
Samples: Lease (Picturetel Corp)
Additional Terms. (a1) The Company shall indemnify and hold harmless the Holders Security Holder and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any the Security Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders Security Holder or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any either the Security Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each the Security Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any the Security Holder or underwriter (or to the benefit of any person controlling any the Security Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Security Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such the Security Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Security Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any the Security Holder or any such underwriter or other person referred to above unless the Security Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Security Holder or underwriter expressly for use therein.
(b2) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the indemnified party and the indemnifying party, but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c3) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Security Holder shall impose upon any the Security Holder any obligation to sell the Security Holder's Registrable Securities.
(d4) Each The Security Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Security Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e5) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holderthe Security Holders of at least a majority of the unsold Registrable Securities, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f6) Each The Security Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Security Holder in the Registration Statement or in order to promote compliance by the Company or the Holder Security Holders with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Samples: Registration Rights Agreement (Brandpartners Group Inc)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) The Holders shall indemnify and hold harmless the Company, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any material untrue statement or material omission based upon information furnished in writing to the Company by any Holder expressly for use therein.
(c) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(cd) Promptly after receipt by an indemnified party under this Section 4 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 4, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential conflict of interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of liability to the indemnified party under this Section 4 only to the extent the indemnifying party is prejudiced as a result thereof.
(e) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's ’s Registrable Securities.
(df) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(eg) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best commercially reasonable efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof, so that the registration of such unsold Registered Securities is maintained for a number of days beyond the Expiration Date equal to the number of days that the Holder is unable to sell pursuant to Section 4(f) above.
(fh) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(gi) The Company agrees that it shall cause each of Each Holder, by its directors, officers and shareholders owning ten percent (10%) or more acceptance of the Company's outstanding Common Stock Registrable Securities, agrees to refrain from selling any shares cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of the Company's Common Stock until the a Registration Statement has been declared effectivehereunder.
(hj) Each Holder, on behalf of itself and itself, its affiliates, its successors and assigns and any other direct or indirect transferee holding any of the Warrants, the Series H Stock or the Registrable Securities, hereby covenants and agrees not to, directly or indirectly, offer to "“short sell"”, contract to "“short sell" ” or otherwise "“short sell" ” or encourage others to “short sell” any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A H Stock or the exercise of the Warrants. For purposes of this Agreement, “short selling” shall include any sale, any trade in any option or other derivative security, any hedging transaction relating to the securities of the Company or any transaction intended to affect the price of the Company’s common stock.
(k) If requested in writing by the Company and the managing underwriter of an underwritten registered public offering by the Company of its Common Stock, the Holders shall agree not to sell or otherwise transfer or dispose of any Common Stock of the Company held by such Holders (other than those included in the registration statement) for a period not to exceed 90 days following the effective date of a registration statement of the Company filed under the Securities Act, provided that all officers and directors of the Company enter into similar agreements identical in terms to that of the Holders.
Appears in 1 contract
Samples: Registration Rights Agreement (Spescom Software Inc)
Additional Terms. (a) a. The Company shall indemnify and hold harmless the Holders Holder and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any the Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders Holder or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any either the Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each the Holder and underwriter; provided, however, that the indemnification in this Section 4(a5(a) with respect to any prospectus shall not inure to the benefit of any the Holder or underwriter (or to the benefit of any person controlling any the Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such the Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any the Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) b. If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the indemnified party and the indemnifying party, but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) c. Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any the Holder any obligation to sell the Holder's Registrable Securities.
(d) Each d. The Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) e. If the Company fails to keep the Registration Statement referred to in Article 3 above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holderthe Holders of at least a majority of the unsold Registrable Securities, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each f. The Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder Holders with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Samples: Registration Rights Agreement (Hand Brand Distribution Inc)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the such Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the such Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the such Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the such Holder or underwriter expressly for use therein.
(b) The Holders shall jointly and severally indemnify and hold harmless the Company, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any material untrue statement or material omission based upon information furnished in writing to the Company by the Holders expressly for use therein.
(c) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(cd) Promptly after receipt by an indemnified party under this Section 4 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 4, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential conflict of interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of liability to the indemnified party under this Section 4 only to the extent the indemnifying party is prejudiced as a result thereof.
(e) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the any Holder shall impose upon any Holder any obligation to sell the such Holder's ’s Registrable Securities.
(df) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Postpost-Effective effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the such Holder receives (or is deemed to have received under applicable securities laws) a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(eg) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof, so that the registration of such unsold Registered Securities is maintained for a number of days beyond the Expiration Date equal to the number of days that such Holder is unable to sell pursuant to Section 4(f) above.
(fh) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the such Holder in the Registration Statement or in order to promote compliance by the Company or the such Holder with the Securities Act.
(gi) The Company agrees that it shall cause each of Each Holder, by its directors, officers and shareholders owning ten percent (10%) or more acceptance of the Company's outstanding Common Stock Registrable Securities, agrees to refrain from selling any shares cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of the Company's Common Stock until the a Registration Statement has been declared effectivehereunder.
(hj) Each Holder, on behalf of itself and itself, its affiliates, its successors and assigns and any other direct or indirect transferee holding any of the Warrants, the Series B Stock or the Registrable Securities, hereby covenants and agrees not to, directly or indirectly, offer enter into or execute any “short sale” (as such term is defined in Rule 200 of Regulation SHO, or any successor regulation, promulgated by the SEC under the Exchange Act) of the Company’s Common Stock; provided, however, that any Holder may enter into or execute any sale (including without limitation sales “against the box”) of the Common Stock of the Company to "short sell", contract to "short sell" or otherwise "short sell" the extent such Holder owns any securities of the CompanyCompany which are convertible, includingexchangeable or exercisable into at least the number Conversion Shares and/or Warrant Shares (as the case may be) which are subject to such sale and, without limitationin the case of Series B Stock, has tendered such shares for conversion into Conversion Shares or, in the case of a Warrant, has exercised the right to acquire such Warrant Shares.
(k) If requested in writing by the Company and the managing underwriter of an underwritten registered public offering by the Company of its Common Stock, the Holders shall agree not to sell or otherwise transfer or dispose of any Common Stock that will be received as a result of the conversion Company held by such Holders (other than those included in the registration statement) for a period not to exceed 90 days following the effective date of a registration statement of the Series A Stock or Company filed under the exercise Securities Act, provided that all officers and directors of the WarrantsCompany enter into similar agreements identical in terms to that of the Holders.
Appears in 1 contract
Samples: Registration Rights Agreement (MultiCell Technologies, Inc.)
Additional Terms. (a) The Company shall indemnify Each Party agrees to indemnify, defend and hold the other Party harmless the Holders and each underwriterfor damages, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused (including reasonable attorneys' fees) (collectively, "Losses") incurred by such other Party arising from any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(athird party claims (i) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale indemnifying Party's material breach of Registrable Securities any obligation, representation or warranty under this Term Sheet and/or the Agreement, or (ii) relating to any physical damage to property, or personal injury or death, caused by the Holder indemnifying Party or underwriterany of its Affiliates, if a copy agents or subcontractors. AOL agrees to indemnify, defend, and hold Vendor harmless from Losses arising from any third party claims of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was intellectual property rights infringement arising from any AOL-developed materials provided to such Holder Vendor to provide the Services. Further, Vendor agrees to indemnify, defend, and hold AOL harmless from Losses arising from any third party claims of intellectual property rights infringement arising from the Services or underwriter by from any materials or services utilized to provide the Company prior Services. If any item described in the last sentence becomes, or is likely to become, the subject sale and the subsequent prospectus was not delivered of an infringement or sent by the Holder misappropriation claim or underwriter to the purchaser prior to such sale and provided furtherproceeding, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying partyVendor shall, in lieu of addition to indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party AOL as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shallprovided above, promptly upon the request of any Holder, at Vendor's expense use best efforts to update (i) secure the Registration Statement right to continue using the item, or file a new registration statement covering (ii) replace or modify the Registrable Securities remaining unsolditem to make it non-infringing, subject provided that any such replacement or modification shall not degrade the performance or quality of the affected component of the Services. In the event neither of such actions can be accomplished by Vendor, and only in such event, Vendor shall remove the item from the Services and the applicable charges under this Term Sheet and/or the Agreement shall be equitably adjusted to reflect such removal and if such removal may reasonably cause degradation of performance or quality of the terms and provisions hereof.
(f) Each Holder agrees to provide affected component of the Company with any information or undertakings reasonably requested Services as required by the Company in order for Exhibit 2 - Service Level Agreement, AOL may at its option terminate this Term Sheet and/or the Company upon notice to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities ActVendor.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Samples: Network Services Agreement (America Online Latin America Inc)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's ’s Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's ’s outstanding Common Stock to refrain from selling any shares of the Company's ’s Common Stock until the Registration Statement has initially been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "“short sell"”, contract to "“short sell" ” or otherwise "“short sell" ” any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. The additional terms and conditions as per the contractual understanding between the Parties are recorded hereunder. However, it is expressly clarified that such additional terms and conditions are not in derogation of or inconsistent with the terms and conditions set out above.
34.1 Subject to Promoter not being in material default of its obligations under this Agreement, the Allottee shall not in any manner cause any objection obstruction interference or interruption at any time hereafter in the construction or completion of construction of or in the Project and/or Complex or other parts of the said Larger Land (anotwithstanding the delivery of possession of the said Apartment to the Allottee in the meantime and notwithstanding there being temporary inconvenience in the use and enjoyment thereof by the Allottee) nor shall at any time hereafter do or omit to be done anything whereby the construction or development of the buildings or the said Larger Land or the sale or transfer of the other units/apartments and areas in the Wings/buildings is in any way interrupted or hindered or impeded with nor shall in any way commit breach of any of the terms and conditions herein contained and if due to any neglect or default on the part of the Allottee or because of any act or deed or omission on the part of the Allottee, the Promoter is restrained from construction of the Wings/buildings and/or transferring and disposing of the other units and areas therein then and in that event without prejudice to such other rights the Promoter may have, the Allottee shall be liable to compensate and also indemnify the Promoter for all losses damages costs claims demands actions and proceedings that may be suffered or incurred by the Promoter.
34.2 It is expressly clarified herein in respect of the residential apartments, parking spaces and other spaces, properties and other rights comprised in the Project and/or the Complex and/or the Phase-1 and/or Commercial Zone, as applicable, which are not intended to be transferred to the Purchaser as aforesaid, the Promoter shall be entitled to use, utilise, transfer, alienate, part with possession, deal with or dispose of the same in any manner whatsoever on such terms and conditions as may be thought fit and proper by them in its absolute discretion, without any reference or objection of to the Allottee. The Company Purchaser hereby consents to the same and undertakes not to raise any claim or create or cause to be created for any reason, directly or indirectly, any obstruction or hindrance whatsoever regarding the same.
34.3 The Allottee shall within 3 (three) months of completion of sale that is from the date of registration of the Deed of Conveyance, apply for and obtain at his/her/its own costs separate assessment and mutation of the Apartment in the records of the concerned Municipality and the BL&LRO and shall keep the Owners and the Promoter indemnified against any loss, claims and/or demand that may be incurred by or may arise against the Owners and/or the Promoter due to non-fulfilment and/or non-observance of this obligation by the Allottee;
34.4 The rights of the Allottee in respect of the said Unit under this Agreement can be exercised only upon payment of all moneys which have fallen due towards consideration, deposits, maintenance and other charges, contributions, and/or interest, if any.
34.5 In case of any amount (including maintenance charges) being due and payable by the Allottee to the Promoter and/or the Association, the Allottee shall not be entitled to let out, transfer or part with possession of the said Unit till the time the same are fully paid and No Dues Certificate is obtained from the Promoter and/or the Association, as applicable.
34.6 The Promoter shall be obliged to deliver possession of the said Unit subject To the Allottee making payment of the entire balance consideration and all other amounts and deposits payable by the Allottee to the Promoter hereunder AND fulfilling all his/her/its other covenants/obligations herein.
34.7 The Promoter shall not be liable to execute or cause to be executed any Conveyance Deed or other instruments in favour of the Allottee until such time the Allottee makes payment of all amounts (including maintenance charges) agreed and required to be paid hereunder by the Allottee AND the Allottee has fully performed all the terms conditions and covenants of this Agreement and on the part of the Allottee to be observed and performed until then.
34.8 All liabilities owing to non-registration of the Conveyance Deed for the reasons solely attributable to the Allottee shall be to the account of the Allottee and the Allottee shall indemnify and hold keep the Promoter saved harmless the Holders and each underwriter, within the meaning indemnified of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against all losses damages costs claims demands suffered or incurred to likely to be suffered or incurred by the Promoter.
34.9 Notwithstanding anything elsewhere to the contrary herein contained it is expressly agreed and understood that the Promoter shall be exclusively entitled to and shall have the exclusive right to install its own glow sign/signage without any fee or charge and for the purposes of the Project also to install and/or permit any person to install towers, V-Sat, Dish or other Antennas or installations of any nature on the roofs for the time being of the Wings or any part thereof on such terms and conditions as the Promoter may in its sole discretion think fit and proper without any objection or hindrance from the Allottee, and the Allottee hereby consents to the same.
34.10 The Allottee shall have no connection whatsoever with the purchasers/buyers of the other Units and there shall be no privity of contract or any agreement arrangement or obligation or interest as amongst the Allottee and the other Allottees (either express or implied) and the Allottee shall be responsible to the Promoter for fulfilment of the Allottee’s obligations and the Allottee’s obligations and the Promoter’s rights shall in no way be affected or prejudiced thereby.
34.11 The properties and rights hereby agreed to be sold to the Allottee is and shall be one lot and shall not be partitioned or dismembered in part or parts in any manner save with the consent of the Promoter in writing. It is further agreed and clarified that any transfer of the said Unit by the Allottee shall not be in any manner inconsistent herewith and the covenants herein contained.
34.12 In respect of clause 7.1, 7.5, 7.6 and 9.2 of the Agreement, it is clarified that all amounts collected as GST and deposited with the appropriate authorities concerned shall not be returned by the Promoter and the Allottee shall be free to approach the authorities concerned for refund of such GST.
34.13 In respect of clause 7.1 of the Agreement, it is clarified that, subject to the Act, the Force Majeure events may include epidemic, pandemic, health emergency, Governmental actions including lockdowns (including partial), curfews or any other events beyond the control of the Promoter including but not limited to any change in law, non-availability or irregular availability of essential inputs, labour, water supply or sewerage disposal connection or electric power, or slow down or strike by contractor, construction agency employed/to be employed, change in any Governmental/statutory notifications, any order/stipulation of the courts/statutory or local authorities, any prohibition order from any court of law or statutory authorities affecting the regular development of the Project.
34.14 In respect of clause 7.5 of the Agreement, it is clarified that where the Allottee proposes to cancel/withdraw from the Project without any fault of the Promoter, then subject to terms mentioned below, the Allottee shall serve a 45 (forty five) days’ notice in writing on the Promoter and on expiry of the said period the allotment shall stand cancelled and the Promoter herein is entitled to forfeit an amount equal to the sum total of the booking amount paid for the allotment along with all interest liabilities of the Allottee in terms of Sec. 19 of the Act accrued till the date of such cancellation (“Cancellation Charges”) and the applicable GST payable on such Cancellation Charges. The balance amount of money paid by the Allottee shall be returned by the Promoter to the Allottee within 45 (forty-five) days of such cancellation.
34.15 In respect of clause 7.5 and 9.3 above of this Agreement:
a. The Allottee agrees that where the Allottee proposes to cancel/withdraw from the Project without any fault of the Promoter, the Promoter shall make such refund without any interest or compensation and all lossescharges and expenses that may be incurred by the Promoter in making such refund shall be borne by the Allottee. However, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed event the Allottee is required by the Company under Promoter to execute and present for registration a Deed of Cancellation of allotment, the Securities Act with respect Allottee hereby agrees to do so without any claim charge and demand and only on registration of such Deed of Cancellation, the Promoter shall refund to the Allottee amounts as mentioned in Clause 7.5 and 9.3 above.
b. The Allottee further understands and agrees to pay the necessary Stamp Duty, registration fees, all other charges and expenses if any, that may be payable for registration of the Registrable Securities, any post-effective amendment Deed of Cancellation.
c. In the event the Allottee is unable to such registration statements, or any prospectus included therein or caused by any omission execute the said Deed of Cancellation; the Promoter shall have the right to state therein a material fact required to be stated therein or necessary to make unilaterally execute and/or register the statements therein said Deed of Cancellation and the Allottee shall not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing object to the Company same and the Allottee shall cease to have any right title interest whatsoever in the Apartment or Project on and from the date of expiry of the period mentioned in the notice of cancellation or termination issued by the Holders Promoter or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other personAllottee, as the case may be.
34.16 In respect of clause 10 of the Agreement, it is clarified that the conveyance deed shall be drafted by the solicitors/advocates of the Promoter.
34.17 The Allottee acknowledges and agrees that the Allottee shall have the right of use of the Sampurna Shared Common Areas to be used and enjoyed in common with the allottees of the Residential Zone and Commercial Zone as mentioned in Part C of the Schedule-F hereto.
34.18 In respect of clause 18 of the Agreement, it is clarified that for obtaining financial assistance and/or loans from Banks, Financial Institutions, NBFCs and other lenders, the Promoter may already have created mortgage and/or charge on the said Larger Land and/or any part thereof and shall be at liberty to create further mortgages and/or charges in respect of the said Larger Land or any part thereof, and the Allottee hereby consents to the same. Provided however that at the same time indemnify of execution of the CompanyDeed of Conveyance, its directors, each officer signing the Registration Statement and each personPromoter assures to have the said Unit released from any such mortgage and/or charge, if any, who controls with intent that the Company Allottee, subject to his making payment of all the amounts payable as per the Payment Plan annexed hereto and complying with his other obligations herein, will be acquiring title to the said Unit free of all such mortgages and charges created by the Promoter.
34.19 In respect of clause 12 of this Agreement, it is expressly agreed and understood that in case the Allottee, without first notifying the Promoter and without giving to the Promoter the opportunity to inspect assess and determine the nature of such defect (which inspection Promoter shall be required to complete within the meaning 30 working days of receipt of the Securities Actnotice from the Allottee), from alters the state and against any and all lossescondition of such defect, claims, damages and liabilities caused by any untrue statement then the Promoter shall be relieved of a material fact its obligations contained in clause 12 of this Agreement and the Registration StatementAllottee shall not be entitled to any cost or compensation in respect thereof. Further, the Promoter shall not be liable to rectify any registration statement defect occurring under the following circumstances:
a. If there are changes, modifications or alteration in plumbing pipes and fittings and fixtures or change of wall or floor tiles (wherever given) after the Allottee taking over possession of the Apartment, the Promoter will not take any responsibility of waterproofing, cracks or any prospectus defect in plumbing pipes and fittings and fixtures that have developed directly or indirectly due to such changes;
b. If there are changes, modifications or alteration in electrical lines and wirings after said possession unto the Allottee, the Promoter will not take any responsibility of any defect in electrical lines and wirings that have developed directly or indirectly due to such changes, modifications or alterations;
c. If there are changes, modifications or alterations in doors, or other related items excluding those which the Allottee is not permitted to change then the Promoter will not take responsibility of door locks or door alignment or any other related defects arising directly or indirectly out of such changes, modifications or alterations;
d. If the Allottee after taking actual physical possession of the Apartment, executes interior decoration work including any addition and/or alteration in the layout of the internal walls of the Apartment by making any changes in the Apartment, then any defect like damp, hair line cracks, breakage in floor tiles or other defects arising as a direct or indirect consequence of such alterations or changes will not be entertained by the Promoter;
e. If the materials and fittings and fixtures provided by the Promoter are not being maintained by the Allottee or his/her agents in the manner in which same is required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make maintained and if the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company materials and fittings and fixtures provided by the Holder or underwriter expressly for use thereinPromoter are not available in the market.
(b) If for any reason f. Any electrical fittings and/or gadgets or appliances or other fittings and fixtures provided by the indemnification provided for Promoter in the preceding section common areas and/or in the Apartment going out of order or malfunctioning due to voltage fluctuations or other reasons not under the control of the Promoter and not amounting to poor workmanship or manufacture thereof.
g. If the Architect certifies that such defects are not manufacturing defects or due to poor workmanship or poor quality and any normal wear and tear.
h. Notwithstanding anything hereinbefore contained it is held by a court hereby expressly agreed and understood that in case the Allottee, without first notifying the Promoter and without giving the Promoter the reasonable opportunity to inspect, assess and determine the nature of competent jurisdiction purported defect in the Apartment, alters the state and condition of the area of the purported defect, then the Promoter shall be relieved of its obligations contained in clause 12 hereinabove.
34.20 The Promoter shall assist the Allottee to be unavailable to an indemnified party obtain electricity meters with respect to any loss, claim, damage, liability or expense referred his/her/its Apartment from electricity supply agency. The Allottee shall be required to therein, then the indemnifying party, fill in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then forms and pay the Company shall, promptly upon applicable security deposit and charges to electricity supply agency. The Allottee shall pay the request of any Holder, use best efforts electricity bill pertaining to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject his/her/its Apartment directly to the terms and provisions hereofelectricity supply agency.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Samples: Sale Agreement
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's ’s outstanding Common Stock to refrain from selling any shares of the Company's ’s Common Stock until the Registration Statement has been declared effective.
(h) Each Commencing on the date hereof and continuing until such time as the Holder or its affiliates no longer hold securities of the Company, each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", or contract to "short sell" or otherwise "“short sell" any ” the securities of the Company, including, without limitationlimitation the Conversion Shares.
(i) Each Holder, shares on behalf of Common Stock that will be received as a result itself and its affiliates, hereby covenants and agrees to comply with all SEC rules required of it during the pendency of the conversion registration process, including not selling any securities of the Series A Stock Company to the extent not allowed during the registration period.
(j) Except as set forth on Exhibit “A” attached hereto and incorporated herein by reference, other than the Registrable Securities, the Company shall not include any other securities for registration in the Registration Statement or file any other registration statement unless the exercise of the WarrantsRegistration Statement is effective.
Appears in 1 contract
Samples: Registration Rights Agreement (Universal Guardian Holdings Inc)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and With respect to each underwriter, within the meaning of the Securities Actreleases set forth above, who may purchase each person or entity granting or receiving such a release (i) agrees that such releases do not preclude any Party hereto from seeking to enforce any undertaking or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact promise contained in the Registration StatementSettlement Agreement or from seeking redress for the breach of any representation or warranty contained in the Settlement Agreement; (ii) agrees not to directly or indirectly encourage or pursue with or before any federal, state or other governmental agency, authority or court any other registration statement filed claim or complaint against any of the persons or entities released herein, including but not limited to any such claim or complaint relating to matters covered by the Company under Settlement Agreement (other than the Securities Act with respect to enforcement of any undertaking or promise contained herein), the registration of the Registrable Securities, any post-effective amendment to such registration statementsAction, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act matters claimed, asserted or alleged, or that could have been claimed, asserted or alleged in the Action; and (iii) agrees not to challenge, and shall use its best efforts to cause each officerof its affiliates, directorAssociates and representatives not to challenge, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit validity of any Holder provisions of the Settlement Agreement or underwriter (this Release. This Release shall apply to McKinley individually, and nothing contained herein shall prohibit MxXxxxxx from performing his duties to his current or future clients xxx xxx current or future employer in his capacity as a securities broker. Except as may be otherwise required by law, the Sweet 13D Group will not encourage or cooperate with plaintiffs in any pending or subsequently initiated derivative, class action or shareholder litigation related to the benefit of any person controlling any Holder Spectranetics or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors. Except as may be otherwise required by law, each officer signing the Registration Statement and each personSpectranetics will not encourage or cooperate with plaintiffs in any pending or subsequently initiated derivative, if any, who controls the Company within the meaning class action or shareholder litigation related to Spectranetics to which any of the Securities ActSweet 13D Group is a party. In the event that any part of the Settlement Agreement is temporarily, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement preliminarily or any prospectus required to be filed permanently enjoined or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held restrained by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any lossjurisdiction, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, Parties hereto shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use their reasonable best efforts to update the Registration Statement cause any such injunction or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in restraining order to promote compliance by the Company be vacated or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" dissolved or otherwise "short sell" any securities declared or determined to be of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock no further force or the exercise of the Warrantseffect.
Appears in 1 contract
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders Holder and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any the Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statementeither registration statement filed pursuant to Article 2 of this Agreement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders Holder or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any either the Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each the Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any the Holder or underwriter (or to the benefit of any person controlling any the Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such the Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale sale; and provided further, that the Company shall not be obligated to so indemnify any the Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement applicable registration statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statementapplicable registration statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.any
Appears in 1 contract
Additional Terms. Except as otherwise expressly stated herein, the following provisions shall be applicable to the Registration Statement:
(ai) The Company will use its best efforts to cause the Registration Statement to become effective as promptly as possible, and if any stop order shall be issued by the SEC in connection therewith to use its reasonable efforts to obtain the Page 106 of 149 removal of such order. Following the effective date of the Registration Statement, the Company shall, upon the request of the Holder, forthwith supply such reasonable number of copies of the Registration Statement, preliminary prospectus and prospectus meeting the requirements of the Securities Act of 1933, as amended (the "Securities Act"), and other documents necessary or incidental to a public offering of the Registrable Securities, as shall be reasonably requested by the Holder to permit the Holder to make a public distribution of its, his or her Registrable Securities; provided, however, that by accepting this Warrant, the Holder agrees, if requested by the managing underwriter(s) in connection with an underwritten public offering of the Company's equity securities, to enter into a customary agreement with such managing underwriter(s) not to offer for sale or sell its, his or her Registrable Securities for up to 180 days after such offering. The Company will use its reasonable efforts to qualify the Registrable Securities for sale in such states as the Holder of Registrable Securities shall reasonably request, provided that no such qualification will be required in any jurisdiction where, solely as a result thereof, the Company would be subject to service of general process or to taxation or qualification as a foreign corporation doing business in such jurisdiction. The obligations of the Company hereunder with respect to the Holder's Registrable Securities are expressly conditioned on the Holder's furnishing to the Company such appropriate information concerning the Holder, the Holder's Registrable Securities and the terms of the Holders offering of such Registrable Securities as the Company may reasonably request.
(ii) The Company shall pay all expenses incurred in complying with the provisions of this Paragraph 14, including, without limitation, all registration and filing fees (including all expenses incident to filing with the National Association of Securities Dealers, Inc.), printing expenses, fees and disbursements of counsel to the Company, securities law and blue sky fees and expenses and the expenses of any regular and special audits incident to or required by any such registration. All underwriting discounts and selling commissions applicable to the sales of the Registrable Securities, and any state or federal transfer taxes payable with respect to the sales of the Registrable Securities and all fees and disbursements of counsel for the Holder, if any, in each case arising in connection with registration of the Registrable Securities shall be payable by the Holder.
(iii) In connection with the registration of the Registrable Securities pursuant to this Paragraph 14, the Company shall indemnify and hold harmless the Holders Holder, its affiliates, officers, directors, partners, employees, agents and representatives, each underwriterperson, if any, who controls the Holder within the meaning of the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act, who may purchase from or sell for any Holder"), any person deemed to be an underwriter of the Registrable SecuritiesSecurities and any person claiming by or through any of them (collectively, the "Indemnified Persons") from and against any and all losses, claims, damages and damages, expenses or liabilities caused by (or actions in respect thereof) arising out of or are based upon any untrue statement of a any material fact contained in the Registration StatementStatement or alleged untrue statement, any other registration statement filed by the Company under which such securities were registered under the Securities Act with respect to the registration of the Registrable SecuritiesAct, any post-effective amendment to such registration statementspreliminary prospectus or final prospectus contained therein, or any prospectus included therein amendment or caused by any supplement thereto, or arise out of or are based upon the omission to state therein a material fact required to be stated therein or necessary to make the statements therein made therein, in light of the circumstances under which they are made, not misleading, except insofar as such lossesor any violation by the Company of the Securities Act, claims, damages the Exchange Act or liabilities are caused by any such untrue statement state securities or omission based upon information furnished or required to be furnished in writing blue sky laws applicable to the Company by the Holders and relating to action or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning Page 107 of 149 inaction required of the Securities Act Company in connection with such registration or qualification under such state securities or blue sky laws; and each officerwill reimburse the Indemnified Persons for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such loss, directorclaim, employee and agent of each Holder and underwriterdamage, liability or action; provided, however, that the indemnification Company will not be liable in this Section 4(a) with respect any such case to any prospectus shall not inure Indemnified Person to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of extent that any such loss, claim, damage or liability arising from the sale arises out of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the is based upon an untrue statement or omission made in such earlier the Registration Statement, said preliminary prospectus was provided or said final prospectus or said amendment or supplement or any document incident thereto in reliance upon and in conformity with written information furnished to such Holder or underwriter by the Company prior to by or on behalf of the subject sale Holder.
(iv) The Holder will indemnify and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that hold harmless the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act, each officer of the Company who signs the Registration Statement and each director of the Company from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by arising from any untrue statement in, or omission based from, the Registration Statement, any such preliminary or final prospectus, amendment, or supplement or document incident thereto if the statement or omission in respect of which such loss, claim, damage or liability is asserted was made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Holder or underwriter expressly for use thereinin connection with the preparation of the Registration Statement or such prospectus or amendment or supplement thereof.
(bv) The reimbursements required by clauses (iii) and (iv) shall be made by periodic payments during the course of the investigation or defense as and when bills are received or expenses incurred; provided, however, that to the extent that an indemnified party receives periodic payments for legal or other expenses during the course of an investigation or defense, and such party subsequently received payments for such expenses from any other parties to the proceeding, such payments shall be used by the indemnified party to reimburse the indemnifying party for such periodic payments. Any party which proposes to assert the right to be indemnified under clause (iii) or (iv) will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim is to be made against any indemnified party hereunder, notify each such indemnifying party of the commencement of such action, suit or proceeding, enclosing a copy of all papers served, but the failure to so notify such indemnifying party of any such action, suit or proceeding shall not relieve the indemnifying party from any obligation which it may have to any indemnified party hereunder unless and only to the extent that the indemnifying party is prejudiced by said lack of notice. In case any such action, suit or proceeding shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal or other expense, other than reasonable costs of investigation subsequently incurred by such indemnified party in connection with the defense thereof. The indemnified party shall have the right to employ its own counsel in any such action, but the reasonable fees and expenses of such counsel shall be at the expense of such indemnified party, when and as incurred, unless (A) the employment of counsel by such indemnified party has been authorized by the indemnifying party, (B) the indemnified party has reasonably concluded (based on advice of counsel), that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying party, (C) the indemnified party shall have reasonably concluded (based on advice of counsel) that there may be a conflict of interest between the indemnifying party and the indemnified party in the conduct of defense of such action (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party), or (D) the indemnifying party shall not in fact have employed counsel to assume the defense of such action within 15 days after receipt of notice of such action. An indemnifying party shall not be liable for any settlement or any action or claim effected without its consent, which shall not be unreasonably withheld.
(vi) If for any reason the indemnification provided for in the preceding section this Paragraph 14 is held by a court of competent jurisdiction to be unavailable to an any indemnified party with hereunder in respect to of any losslosses, claimclaims, damagedamages, liability liabilities or expense expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunderparty, shall contribute to the amount paid or payable by the such indemnified party as a result of such losslosses, claimclaims, damage damages, liabilities or liability expenses in such proportion as is appropriate to reflect the relative fault of the indemnified indemnifying party and indemnified parties in connection with the indemnifying partyactions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying, party or indemnified parties, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth herein, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(cvii) The Company and the Holder agree that it would not be just and equitable if contribution pursuant to clause (vi) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding any other provision hereof, in no event shall the contribution obligation of the Holder be greater in amount than the excess of (A) the dollar amount of proceeds received by the Holder upon the sale of the securities giving rise to such contribution obligation over (B) the dollar amount of any damages that the Holder has otherwise been required to pay by reason of the untrue or alleged untrue statement or omission or alleged omission giving rise to such obligation. No person guilty of fraudulent misrepresentation (within the meaning of Section 1l(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(viii) Neither the filing of a the Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any the Holder any obligation to exercise his, her or its Warrants or to sell the Holder's his, her or its Registrable Securities.
(dix) Each The Holder, upon receipt of notice from the Company that an event has occurred which requires a Postpost-Effective Amendment effective amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of his, her or its Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Cramer Rosenthal McGlynn LLC /Adv)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock Stock, except under Rule 144, until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock Debentures or the exercise of the Warrants.
Appears in 1 contract
Samples: Registration Rights Agreement (Tidelands Oil & Gas Corp/Wa)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders Holder and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any the Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable SecuritiesAct, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders any Holder or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any either the Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each the Holder and underwriter; provided, however, that the indemnification in this Section 4(a5(a) with respect to any prospectus shall not inure to the benefit of any the Holder or underwriter (or to the benefit of any person controlling any the Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such the Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus Prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use thereinsale.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the indemnified party and the indemnifying party, but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any the Holder any obligation to sell the Holder's Registrable Securities, except as may be required in accordance with Section 2 hereof.
(d) Each The Holder, upon receipt of notice from the Company that an event has occurred which requires a Postpost-Effective Amendment effective amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to in Article 2 above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, shall use its best efforts to promptly update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any HolderHolders, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder Holders or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder Holders and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder Holders or underwriter (or to the benefit of any person controlling any Holder Holders or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder Holders or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder Holders or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder Holders or underwriter to the purchaser Holders prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder Holders or any such underwriter or other person referred to above unless the Holder Holders or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder Holders or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder Holders shall impose upon any Holder Holders any obligation to sell the HolderHolders's Registrable Securities.
(d) Each HolderHolders, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder Holders receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any HolderHolders, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees Holders agree to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder Holders in the Registration Statement or in order to promote compliance by the Company or the Holder Holders with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders shareHolders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each HolderHolders agree with the Company that such Holders will not short sell the Company's shares of Common Stock, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly either before or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities after the effective date of the CompanyRegistration Statement, including, without limitation, and the Holders agree that they will not collectively sell on any given day a number of shares of Common Stock that will be received as a result in excess of fifteen percent (15%) of the conversion Average Dollar Daily Trading Volume for the prior fifty (50) trading days as reported by BigCharts.com or an other nationally recognized reporting service. Xxxx xxxxxxxx shall terminate concurrently with the termination of the Series A Stock or Company's obligation to maintain the exercise effectiveness of the WarrantsRegistration Statement pursuant to Section 2(a).
Appears in 1 contract
Additional Terms. (a) The Company Presidion shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities liabilities
(i) caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company Presidion under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or or
(ii) caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading or
(iii) caused by any violation or alleged violation by Presidion of the Securities Act, any state securities or "blue sky" laws or any sale or regulation thereunder in connection with such registration, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company Presidion by the Holders Holder(s) or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder the Holder(s) or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder the Holder(s) or underwriter (or to the benefit of any person controlling any Holder the Holder(s) or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder Holder(s) or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder Holder(s) or underwriter by the Company Presidion prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder Holder(s) or underwriter to the purchaser prior to such sale and provided further, that the Company Presidion shall not be obligated to so indemnify any Holder the Holder(s) or any such underwriter or other person referred to above unless the Holder Holder(s) or underwriter or other person, as the case may be, shall at the same time indemnify the CompanyPresidion, its directors, each officer signing the Registration Statement and each person, if any, any who controls the Company Presidion within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company Presidion by the Holder Holder(s) or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the indemnified party and the indemnifying party, but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Presidion stipulates that the Holders shall not have an adequate remedy if Presidion fails to comply with this Agreement and that damages shall not be readily ascertainable, and accordingly, Presidion shall not oppose an application by the Holders of the Registrable Securities or any other person entitled to the benefits of this Agreement to require specific performance of any and all provisions hereof or enjoining Presidion from continuing to commit any such breach of this Agreement.
(d) Neither the filing of a Registration Statement by the Company Presidion pursuant to this Agreement nor the making of any request for prospectuses by the any Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(de) Each HolderThe Holder(s), upon receipt of notice from the Company Presidion that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives Holder(s) receive a copy of a supplemented or amended prospectus from the CompanyPresidion, which the Company Presidion shall provide as soon as practicable after such notice.
(ef) If the Company Presidion fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company Presidion shall, promptly upon the request of any Holder, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(fg) Each Holder agrees The holders agree to provide the Company Presidion with any information or undertakings reasonably requested by the Company Presidion in order for the Company Presidion to include any appropriate information concerning the Holder Holders in the Registration Statement or in order to promote compliance by the Company Presidion or the Holder Holders with the Securities Act.
(gh) The Company agrees that it shall cause each From the date of its directors, officers and shareholders owning ten percent (10%) or more this Agreement until the date all of the Company's outstanding Common Stock Registrable Securities have been registered, Presidion shall not register (or attempt to refrain from selling register) any shares stock of Presidion (common, preferred, or otherwise) unless the Company's Common Stock until the Registration Statement has been declared effectiveRegistrable Securities are being registered concurrently with such other stock.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. In addition to the other terms and ---------------- conditions of this Agreement, Buyer and Seller covenant and agree as follows:
(a) The Company At or before the Closing Date, Seller shall indemnify have executed and hold harmless the Holders delivered to Buyer such UCC financing statements, as are prepared by Seller for filing, to assign to Buyer Seller's interest and each underwriter, within the meaning to give notice of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained Buyer's interest in the Registration Statement, any other registration statement Account Assets and/or Account Receivables transferred by Seller. Such financing statements will be filed by the Company under the Securities Act with respect to the registration of the Registrable SecuritiesSeller, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify appropriate place or places for the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required financing statements to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as for such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use thereinpurpose.
(b) If It is hereby agreed that the Buyer does not assume or incur and shall not in any manner become liable for any reason debt, obligation, or liability of the indemnification Seller, except as provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability herein or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerationstransactions contemplated by this Agreement.
(c) Neither All books and records relating to the filing Accounts and the related Account Receivables shall be maintained and held by Seller for a period of seven (7) years and shall be delivered by Seller to Buyer upon Buyer's request within fifteen (15) Business Days after the date of such request in accordance with the Buyer's instructions. Such books and records shall include, on an Account by Account basis (from Seller's microfilm records and/or master file): (i) the application and credit agreement, (ii) the Sales Slip or invoice; (iii) the Account history; (iv) any collection history and (v) any other records maintained by Seller in its ordinary course of business. In the event that Seller does not have or does not deliver to Buyer a Registration Statement by requested record on an Account and Buyer suffers a loss that results from Seller's failure to retain or deliver such record, then the Company Parties agree that Buyer may treat the associated sales slip or sales transaction as a "Chargeback" pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable SecuritiesMerchant Agreement.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment Seller and Buyer shall cooperate fully with each other in connection with any examination conducted by any tax or regulatory authority with respect to the Registration Statement or a supplement Accounts and related Account Receivables subsequent to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such noticeConversion Date.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, Seller and Buyer will use best all reasonable efforts to update the Registration Statement take, or file a new registration statement covering the Registrable Securities remaining unsoldcause to be taken, subject all actions, and to the terms and provisions hereof.
(f) Each Holder agrees do, or cause to provide the Company with any information be done, all things necessary, proper or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not advisable to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Seaman Furniture Co Inc)
Additional Terms. (a) The To the extent permitted by law, the Company shall will indemnify and hold harmless the Holders Investor, its agents, trustees and beneficiaries, partners, officers, directors, shareholders and members of the Investor, legal counsel and accountants for the Investor, and each underwriter, person who controls the Investor within the meaning of the Securities Act or the Exchange Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and or liabilities caused by (joint or several) to which they may become subject under the Securities Act, the Exchange Act or any state securities laws, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”): (i) any untrue statement or alleged untrue statement of a material fact contained in the such Registration Statement, including any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, preliminary prospectus or final prospectus contained therein or any prospectus included therein amendments or caused by any supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading, except insofar as or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities laws; and the Company will reimburse the indemnified party under this Section 4(a), for any reasonable legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the indemnity described herein shall not apply any loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by the Investor; provided further, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of the Investor, from whom the person asserting any such losses, claims, damages or liabilities are caused by any such untrue statement purchased shares in the offering, if a copy of the prospectus (as then amended or omission based upon information furnished or required to be furnished in writing to supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by the Holders or underwriter expressly for use therein, which indemnification shall include each on behalf of such Investor to such person, if anyrequired by law so to have been delivered, who controls any Holder at or underwriter within prior to the meaning written confirmation of the Securities Act sale of the shares to such person, and each officer, director, employee and agent of each Holder and underwriter; provided, however, that if the indemnification in this Section 4(aprospectus (as so amended or supplemented) with respect would have cured the defect giving rise to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from liability.
(b) To the sale of Registrable Securities extent permitted by law, the Holder or underwriterInvestor will severally, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale jointly, indemnify and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify hold harmless the Company, each of its directors, each officer signing of its officers who has signed the Registration Statement and registration statement, each person, if any, who controls the Company within the meaning of the Securities ActAct or the Exchange Act and legal counsel and accountants for the Company, from and against any and all losses, claims, damages and or liabilities caused by to which any untrue statement of a material fact contained in the Registration Statementforegoing persons may become subject, any registration statement under the Securities Act, the Exchange Act or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleadingsecurities laws, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are caused by any untrue statement or omission based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information specifically furnished by the Investor expressly for use in connection with such registration which consists solely of the information specified in Section 4(d); and the Investor will reimburse any person intended to be indemnified pursuant to the foregoing, for any legal or other expenses reasonably incurred by such person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the indemnity obligation of the Investor hereunder shall not in any event exceed the net proceeds received by the Investor from the offering giving rise to such liability.
(c) Promptly after receipt by an indemnified party of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel reasonably satisfactory to each party; provided, however, that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the reasonable fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this paragraph. After notice from an indemnifying party to such indemnified party of its election to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of this paragraph for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (i) the indemnified party shall have employed counsel in accordance with the first sentence of this paragraph or (ii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent; provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the indemnified party, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the indemnified party with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made.
(d) The Investor confirms, and the Company acknowledges, that the information to appear in the table in the section entitled “Principal and Selling Shareholders” or equivalently named section in the Registration Statement under the headings “Name of Beneficial Owner,” “Shares Beneficially Owned Prior to Offering – Number of Shares,” “Maximum Number of Shares Offered in this Offering,” or equivalently named headings in the Registration Statement and in the footnote related to such information pertaining to the Investor constitute the only information concerning the Investor that will be furnished in writing to the Company by or on behalf of the Holder or underwriter expressly Investor for use thereininclusion in the Registration Statement.
(be) If for any reason the indemnification provided for in the preceding section above is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage, liability damage or expense referred to thereinherein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunderhereunder, shall contribute to the amount paid or payable by the such indemnified party as a result of such loss, liability, claim, damage or liability expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party and on the indemnifying partyother in connection with the statements or omissions that resulted in such loss, liability, claim, damage or expense, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. No person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding any other provision of this Section, the Investor shall not be required to contribute any amount in excess of the amount by which the net proceeds received by such Investor from the sale of the shares of the Common Stock or sale of the shares of Common Stock issued upon exercise of the Warrants, in each case pursuant to a Registration Statement, exceeds the amount of damages which the Investor has otherwise been required to pay by reason of such untrue or alleged untrue statement or alleged omission. The obligation of the Investor obliged to make contribution pursuant to this Section shall be several and not joint.
(cf) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder Investor shall impose upon any Holder the Investor any obligation to sell the Holder's Investor’s beneficially owned Registrable Securities.
(dg) Each HolderThe Investor, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder Investor receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(eh) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holderthe Investor, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(fi) Each Holder The Investor agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder Issuer in the Registration Statement or in order to promote compliance by the Company or the Holder Issuers with the Securities Act.
(gj) The With a view to making available to the Investor the benefits of Rule 144 and Rule 144A promulgated under the Securities Act and other rules and regulations of the Commission that may at any time permit the Investor to sell securities of the Company agrees to the public without registration, the Company covenants that it shall cause each of its directorsuse commercially reasonable efforts to (i) file in a timely manner all reports and other documents required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder and (ii) take such further action as the Investor may reasonably request (including providing any information necessary to comply with Rule 144 and Rule 144A, officers and shareholders owning ten percent (10%) or more if available with respect to resales of the Company's outstanding Common Stock Registrable Securities under the Securities Act), at all times, all to refrain the extent required from selling any shares time to time to enable the Investor to sell Registrable Securities without registration under the Securities Act within the limitation of the Company's Common Stock until the Registration Statement has been declared effective.
exemptions provided by (hx) Each Holder, on behalf of itself Rule 144 and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer Rule 144A (if available with respect to "short sell", contract to "short sell" or otherwise "short sell" any securities resales of the CompanyRegistrable Securities) under the Securities Act, includingas such rules may be amended from time to time, without limitation, shares of Common Stock that will be received as a result of or (y) any other rules or regulations now existing or hereafter adopted by the conversion of the Series A Stock or the exercise of the Warrants.Commission
Appears in 1 contract
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) . If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) . Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) . Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) . If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) . Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) . The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) . Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of the Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Samples: Registration Rights Agreement (Multicell Technologies Inc.)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If if for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred refen-ed to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. (a) The To the extent permitted by law, the Company shall will indemnify and hold harmless the Holders Investor, its agents, trustees and beneficiaries, partners or officers, directors and shareholders of the Investor, legal counsel and accountants for the Investor, and each underwriter, person who controls the Investor within the meaning of the Securities Act or the Exchange Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and or liabilities caused by (joint or several) to which they may become subject under the Securities Act, the Exchange Act or any state securities laws, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"): (i) any untrue statement or alleged untrue statement of a material fact contained in the such Registration Statement, including any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, preliminary prospectus or final prospectus contained therein or any prospectus included therein amendments or caused by any supplements thereto: (ii) the omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading, except insofar as or (iii) any Violation or alleged Violation by the Company of the Securities Act, the Exchange Act, any state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities laws: and the Company will reimburse the indemnified party under this Section 4(a), for any reasonable legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the indemnity described herein shall - not apply any loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by the Investor; provided further, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of the Investor, from whom the person asserting any such losses, claims, damages or liabilities are caused by any such untrue statement purchased shares in the offering, if a copy of the prospectus (as then amended or omission based upon information furnished or required to be furnished in writing to supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by the Holders or underwriter expressly for use therein, which indemnification shall include each on behalf of such Investor to such person, if anyrequired by law so to have been delivered, who controls any Holder at or underwriter within prior to the meaning written confirmation of the Securities Act sale of the shares to such person, and each officer, director, employee and agent of each Holder and underwriter; provided, however, that if the indemnification in this Section 4(aprospectus (as so amended or supplemented) with respect would have cured the defect rise to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from liability.
(b) To the sale of Registrable Securities extent permitted by law, the Holder or underwriterInvestor will severally, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale jointly, indemnify and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify hold harmless the Company, each of its directors, each officer signing of its officers who has signed the Registration Statement and registration statement, each person, if any, who controls the Company within the meaning of the Securities ActAct or the Exchange Act and legal counsel and accountants for the Company, from and against any and all losses, claims, damages and or liabilities caused by to which any untrue statement of a material fact contained in the Registration Statementforegoing persons may become subject, any registration statement under the Securities Act, the Exchange Act or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleadingsecurities laws, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are caused by any untrue statement or omission based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information specifically furnished by the Investor expressly for use in connection with such registration which consists solely of the information specified in Section 4(d): and the Investor will reimburse any person intended to be indemnified pursuant to the foregoing, for any legal or other expenses reasonably incurred by such person in connection with investigating or defending any such loss, claim, damage, liability or action: provided, however, that the indemnity obligation of the Investor hereunder shall not in any event exceed the net proceeds received by the Investor from the offering giving rise to such liability.
(c) Promptly after receipt by an indemnified party of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying parry shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying parry similarly noticed, to assume the defense thereof with counsel reasonably satisfactory to each party: provided, however, that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the reasonable fees and expenses to be paid by the indemnifying party, if representation of such indemnified parry by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified parry and any other parry represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying parry' of any liability to the indemnified party, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this paragraph. . After notice from an indemnifying party to such indemnified parry of its election to assume the defense thereof, the indemnifying party will not be liable to such indemnified parry pursuant to the provisions of this paragraph for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (i) the indemnified party shall have employed counsel in accordance with the first sentence of this paragraph or (ii) the indemnifying party' has authorized the employment of counsel for the indemnified parry' at the expense of the indemnifying party. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent; provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the indemnified party, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability' in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the indemnified party with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made.
(d) The Investor confirms, and the Company acknowledges, that the information to appear in the table in the section entitled "Principal and Selling Shareholders" or equivalently named section in the Registration Statement under the headings "Name of Beneficial Owner." "Shares Beneficially Owned Prior to Offering-- Number of Shares." "Maximum Number of Shares Offered in this Offering," or equivalently named headings in the Registration Statement and in the footnote related to such information pertaining to the Investor constitute the only information concerning the Investor that will be furnished in writing to the Company by or on behalf of the Holder or underwriter expressly Investor for use thereininclusion in the Registration Statement.
(be) If for any reason the indemnification provided for in the preceding section above is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage, liability damage or expense referred to thereinherein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunderhereunder, shall contribute to the amount paid or payable by the such indemnified party as a result of such loss, liability, claim, damage or liability expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party and on the indemnifying partyother in connection with the statements or omissions that resulted in such loss, liability, claim, damage or expense, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified parry shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. No person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding any other provision of this Section, the Investor shall not be required to contribute any amount in excess of the amount by which the net proceeds received by such Investor from the sale of the shares of the Common Stock issued upon conversion of the Debenture or sale of the shares of Common Stock issued upon exercise of the Warrants, in each case pursuant to a Registration Statement exceeds the amount of damages which the Investor has otherwise been required to pay be reason of such untrue or alleged untrue statement or alleged omission. The obligation of the Investor obliged to make contribution pursuant to this Section shall be several and not joint.
(cf) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder Investor shall impose upon any Holder the investor any obligation to sell the Holderinvestor's beneficially owned Registrable Securities.
(dg) Each HolderThe Investor, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder Investor receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(eh) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holderthe Investor, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(fi) Each Holder The Investor agrees to provide the Company with With any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder Issuer in the Registration Statement or in order to promote compliance by the Company or the Holder Issuers with the Securities Act.
(gj) The With a view to making available to the Investor the benefits of Rule 144 and Rule 144A promulgated under the Securities Act and other rules and regulations of the Commission that may at any time permit the Investor to sell securities of the Company agrees to the public without registration, the Company covenants that it shall cause each of its directorsuse commercially reasonable efforts to (i) file in a timely manner all reports and other documents required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder and (ii) take such further action as the Investor may reasonably request (including providing any information necessary to comply with Rule 144 and Rule 144A, officers and shareholders owning ten percent (10%) or more if available with respect to resales of the Company's outstanding Common Stock Registrable Securities under the Securities Act), at all times, all to refrain the extent required from selling any shares time to time to enable the Investor to sell Registrable Securities without registration under the Securities Act within the limitation of the Company's Common Stock until the Registration Statement has been declared effective.
exemptions provided by (hx) Each Holder, on behalf of itself Rule 144 and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer Rule 144A (if available with respect to "short sell", contract to "short sell" or otherwise "short sell" any securities resales of the CompanyRegistrable Securities) under the Securities Act, includingas such rules may be amended from time to time, without limitation, shares of Common Stock that will be received as a result of or (y) any other rules or regulations now existing or hereafter adopted by the conversion of the Series A Stock or the exercise of the Warrants.Commission
Appears in 1 contract
Samples: Registration Rights Agreement (Environmental Solutions Worldwide Inc)
Additional Terms. The following provisions shall be applicable to any Registration Statement filed pursuant to Section 1 of this Agreement:
(a) The Company will use its reasonable best efforts to cause the Registration Statement to become effective as promptly as possible and, if any stop order shall indemnify and hold harmless be issued by the Holders and each underwriterCommission in connection therewith, within to use its reasonable efforts to obtain the meaning removal of such order. Following the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement effective date of a material fact contained in the Registration Statement, any the Company shall, upon the request of the Holder, forthwith supply such reasonable number of copies of the Registration Statement, preliminary prospectus and prospectus meeting the requirements of the Act, and other registration statement filed documents necessary or incidental to a public offering, as shall be reasonably requested by the Holder to permit the Holder to make a public distribution of his or her Registrable Securities. The Company under will use its reasonable efforts to qualify the Registrable Securities Act for sale in such states as the Holder of Registrable Securities shall reasonably request, provided that no such qualification will be required in any jurisdiction where, solely as a result thereof, the Company would be subject to service of general process or to taxation or qualification as a foreign corporation doing business in such jurisdiction. The obligations of the Company hereunder with respect to the registration of Holder's Registrable Securities are expressly conditioned on the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing Holder's furnishing to the Company by such appropriate information concerning the Holders or underwriter expressly for use thereinHolder, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning Holder's Registrable Securities and the terms of the Securities Act and each officer, director, employee and agent Holder's offering of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by as the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use thereinreasonably request.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any the Holder any obligation to sell the Holder's his or her Registrable Securities.
(dc) Each The Holder, upon receipt of notice from the Company that an event has occurred which requires a Postpost-Effective Amendment effective amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of his or her Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(ed) If the Company fails to keep the Registration Statement referred to above continuously effective during effective, for the requisite periodtime period required by Section 1(d) hereof, then the Company shall, promptly upon the request of any Holderthe Holders of more than 50% of the then-unsold Registrable Securities, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. Notwithstanding anything to the contrary contained hereinbefore, the parties have mutually agreed to the following terms which shall be valid and binding on them in addition to and/or in modification/supercession of those contained hereinbefore:
(ai) The Company shall indemnify Besides the additions and hold harmless alterations permissible under the Holders Act and/or Rules, the Allottee has consented to and/or hereby irrevocably consents that the Promoter may make modifications, additions and each underwriter, alterations within permissible and/or prevailing norms regarding the meaning construction and the specifications of the Securities ActBuildings, who the Common Areas and Facilities and its layout and/or the said Apartment Unit as may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused be deemed necessary by the Promoter and/or as may be advised by the Architects and/or as may be required by any untrue statement of a material fact contained in authority including the Registration Statement, any other registration statement filed by Corporation and the Company same is and shall be deemed to be the previous written consent under the Securities Act with respect Act. Prior to the registration booking of the Registrable Securities, any post-effective amendment said Apartment Unit the Allottee had been informed and made aware that the Common Areas and Facilities and its location and layout may undergo changes and/or modifications and the Allottee has consented to such registration statements, or any prospectus included therein or caused by any omission and/or hereby consents to state therein a material fact required the same and this is and shall be deemed to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning previous written consent of the Securities Act Allottee in terms of the Act. It is agreed that such modifications, additions and/or alterations shall not affect the Total Price and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification total quantum of Common Areas and Facilities mentioned in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company Schedule ‘E’ shall not be obligated reduced to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning detriment of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use thereinAllottee.
(bii) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault The decision of the indemnified party Architects regarding the quality and specifications of the materials and the indemnifying party, workmanship regarding construction as well as any other relevant equitable considerationsalso regarding structural defect/damage shall be final and binding on the parties.
(ciii) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon At the request of any Holderthe Allottee, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, Promoter may at its option and subject to such conditions as it may deem fit, allow the Allottee to have temporary access to the said Apartment for interior and furniture works provided all dues payable to the Promoter are paid in full by the Allottee and subject to such terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested conditions as may be decided by the Company Promoter in order for addition to those mentioned herein. The Allottee shall complete the Company interiors and furniture works without disturbing or causing inconvenience to include any appropriate information concerning the Holder Promoter or the occupants of other Apartments in the Registration Statement or Buildings and without making any change in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers structure and shareholders owning ten percent (10%) or more construction of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself said Apartment and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.in any
Appears in 1 contract
Samples: Sale Agreement
Additional Terms. (a) The As soon as reasonably practicable after the Effective Date, subject to the approval of the Commission, the Company shall indemnify agrees to use its commercially reasonable efforts (but in no event any later than the earlier to occur of (i) the first date on or after the Effective Date on which the Company files a registration statement covering the resale of shares held by Palantir or any third party or (ii) within 30 calendar days of the Closing Date) to file with the Commission (at the Company’s sole cost and hold harmless expense) a registration statement registering the Holders resale of all Acquired Shares, and each underwriter, within to take all commercially reasonable efforts necessary to enable Palantir to resell such Acquired Shares pursuant to such registration statement or pursuant to an applicable exemption from the meaning registration requirements of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from . The Company and against any Palantir further agree to customary covenants and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained other obligations in the Registration Statement, any other registration statement filed by the Company under the Securities Act connection with respect to the registration of the Registrable Securities, any post-effective amendment Acquired Shares as set forth in Appendix A hereto.
(b) Upon request by Palantir and subject to such registration statements, or any prospectus included therein or caused receipt from Palantir by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing Company and its transfer agent of customary representations and documentation reasonably acceptable to the Company by and its transfer agent in connection therewith (provided in the Holders or underwriter expressly for use thereincase of (A) and (B) below, which indemnification that the Company shall include each personcause, assuming the availability of Rule 144 in the case of (B) below, its legal counsel to deliver, if anyrequired, who controls an opinion of the Company’s counsel, in a form reasonably acceptable to the transfer agent, to the effect that the removal of such restrictive legends in such circumstances may be effected under the Securities Act), remove any Holder legend from the book entry position evidencing the Acquired Shares if (A) such Acquired Shares are eligible to, or underwriter within have been or are about to, be sold or transferred pursuant to an effective registration statement, (B) such Acquired Shares can be sold, assigned or transferred or have been or are about to be sold, assigned or transferred pursuant to Rule 144, or (C) in connection with a sale, assignment or other transfer, such holder provides the meaning Company and its transfer agent with an opinion of counsel and other customary paperwork, in a form reasonably acceptable to the Company and the transfer agent, to the effect that such sale, assignment or transfer of the Acquired Shares may be made without registration under the applicable requirements of the Securities Act and each officersuch holder agrees to sell, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification assign or otherwise transfer such securities in this Section 4(a) accordance with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising valid exemption from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning registration requirements of the Securities Act. If restrictive legends are no longer required for such Acquired Shares per the foregoing, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon in accordance with the request terms herein and within five (5) business days of any Holderrequest therefor from Palantir accompanied by such customary and reasonably acceptable representations and documentation referred to above, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject deliver to the terms and provisions hereof.
(f) Each Holder agrees transfer agent irrevocable instructions that the transfer agent shall issue a certificate or book entry record without such legend to provide the holder of the Acquired Shares or issue the Acquired Shares without such legend to such holder by electronic delivery at the applicable balance account at DTC. The Company with any information or undertakings reasonably requested by the Company in order shall be responsible for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each fees of its directors, officers transfer agent and shareholders owning ten percent all DTC fees associated with such issuance and Palantir shall be responsible for all of its associated fees and expenses (10%) including any applicable fees of its broker or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effectivelegal counsel and applicable transfer taxes).
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Samples: Share Issuance Agreement (Rubicon Technologies, Inc.)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) The Holders shall indemnify and hold harmless the Company, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any material untrue statement or material omission based upon information furnished in writing to the Company by any Holder expressly for use therein.
(c) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(cd) Promptly after receipt by an indemnified party under this Section 4 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 4, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential conflict of interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of liability to the indemnified party under this Section 4 only to the extent the indemnifying party is prejudiced as a result thereof.
(e) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(df) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(eg) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best commercially reasonable efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof, so that the registration of such unsold Registered Securities is maintained for a number of days beyond the Expiration Date equal to the number of days that the Holder is unable to sell pursuant to Section 4(f) above.
(fh) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(gi) The Company agrees that it shall cause each of Each Holder, by its directors, officers and shareholders owning ten percent (10%) or more acceptance of the Company's outstanding Common Stock Registrable Securities, agrees to refrain from selling any shares cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of the Company's Common Stock until the a Registration Statement has been declared effectivehereunder.
(hj) Each Holder, on behalf of itself and itself, its affiliates, its successors and assigns and any other direct or indirect transferee holding any of the Series A Stock or the Registrable Securities, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" or encourage others to "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or Stock; provided, however, that nothing contained herein shall prohibit the exercise of Funds from selling any Registrable Securities "against the Warrantsbox."
Appears in 1 contract
Samples: Registration Rights Agreement (Interactive Television Networks)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders Holder and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders Holder or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Commencing on the date hereof and continuing until such time as the Debenture and Warrants are no longer outstanding Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, to offer to "short sell", or contract to "short sell" or otherwise "short sell" any the securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of Company against the conversion of the Series A Stock unconverted Debenture Shares or the exercise of the un-exercised Warrants.
(i) Other than the Registrable Securities and an additional 4,000,533 shares, registered for the benefit of M.A.G. Capital, LLC and its affiliates, and certain third parties set forth in Section 2(b) above, the Company shall not include any other securities for registration in the Registration Statement or file any other registration statement unless the Registration Statement is effective.
Appears in 1 contract
Samples: Registration Rights Agreement (Interactive Television Networks)
Additional Terms. (a) The To the extent permitted by law, the Company shall will indemnify and hold harmless the Holders Investor, its agents, trustees and beneficiaries, partners or officers, directors and shareholders of the Investor, legal counsel and accountants for the Investor, and each underwriter, person who controls the Investor within the meaning of the Securities Act or the Exchange Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and or liabilities caused by (joint or several) to which they may become subject under the Securities Act, the Exchange Act or any state securities laws, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "VIOLATION"): (i) any untrue statement or alleged untrue statement of a material fact contained in the such Registration Statement, including any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, preliminary prospectus or final prospectus contained therein or any prospectus included therein amendments or caused by any supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading, except insofar as or (iii) any Violation or alleged Violation by the Company of the Securities Act, the Exchange Act, any state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities laws; and the Company will reimburse the indemnified party under this Section 4(a), for any reasonable legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the indemnity described herein shall not apply any loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by the Investor; PROVIDED FURTHER, HOWEVER, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of the Investor, from whom the person asserting any such losses, claims, damages or liabilities are caused by any such untrue statement purchased shares in the offering, if a copy of the prospectus (as then amended or omission based upon information furnished or required to be furnished in writing to supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by the Holders or underwriter expressly for use therein, which indemnification shall include each on behalf of such Investor to such person, if anyrequired by law so to have been delivered, who controls any Holder at or underwriter within prior to the meaning written confirmation of the Securities Act sale of the shares to such person, and each officer, director, employee and agent of each Holder and underwriter; provided, however, that if the indemnification in this Section 4(aprospectus (as so amended or supplemented) with respect would have cured the defect giving rise to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from liability.
(b) To the sale of Registrable Securities extent permitted by law, the Holder or underwriterInvestor will severally, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale jointly, indemnify and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify hold harmless the Company, each of its directors, each officer signing of its officers who has signed the Registration Statement and registration statement, each person, if any, who controls the Company within the meaning of the Securities ActAct or the Exchange Act and legal counsel and accountants for the Company, from and against any and all losses, claims, damages and or liabilities caused by to which any untrue statement of a material fact contained in the Registration Statementforegoing persons may become subject, any registration statement under the Securities Act, the Exchange Act or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleadingsecurities laws, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are caused by any untrue statement or omission based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information specifically furnished by the Investor expressly for use in connection with such registration which consists solely of the information specified in Section 4(d); and the Investor will reimburse any person intended to be indemnified pursuant to the foregoing, for any legal or other expenses reasonably incurred by such person in connection with investigating or defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the indemnity obligation of the Investor hereunder shall not in any event exceed the net proceeds received by the Investor from the offering giving rise to such liability.
(c) Promptly after receipt by an indemnified party of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel reasonably satisfactory to each party; PROVIDED, HOWEVER, that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the reasonable fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this paragraph. After notice from an indemnifying party to such indemnified party of its election to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of this paragraph for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (i) the indemnified party shall have employed counsel in accordance with the first sentence of this paragraph or (ii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent; PROVIDED, HOWEVER, that the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the indemnified party, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the indemnified party with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made.
(d) The Investor confirms, and the Company acknowledges, that the information to appear in the table in the section entitled "Principal and Selling Shareholders" or equivalently named section in the Registration Statement under the headings "Name of Beneficial Owner," "Shares Beneficially Owned Prior to Offering - Number of Shares," "Maximum Number of Shares Offered in this Offering," or equivalently named headings in the Registration Statement and in the footnote related to such information pertaining to the Investor constitute the only information concerning the Investor that will be furnished in writing to the Company by or on behalf of the Holder or underwriter expressly Investor for use thereininclusion in the Registration Statement.
(be) If for any reason the indemnification provided for in the preceding section above is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage, liability damage or expense referred to thereinherein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunderhereunder, shall contribute to the amount paid or payable by the such indemnified party as a result of such loss, liability, claim, damage or liability expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party and on the indemnifying partyother in connection with the statements or omissions that resulted in such loss, liability, claim, damage or expense, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. No person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding any other provision of this Section, the Investor shall not be required to contribute any amount in excess of the amount by which the net proceeds received by such Investor from the sale of the shares of the Common Stock issued upon conversion of the Debenture or sale of the shares of Common Stock issued upon exercise of the Warrants, in each case pursuant to a Registration Statement exceeds the amount of damages which the Investor has otherwise been required to pay be reason of such untrue or alleged untrue statement or alleged omission. The obligation of the Investor obliged to make contribution pursuant to this Section shall be several and not joint.
(cf) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder Investor shall impose upon any Holder the Investor any obligation to sell the HolderInvestor's beneficially owned Registrable Securities.
(dg) Each HolderThe Investor, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder Investor receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(eh) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holderthe Investor, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(fi) Each Holder The Investor agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder Issuer in the Registration Statement or in order to promote compliance by the Company or the Holder Issuers with the Securities Act.
(gj) The With a view to making available to the Investor the benefits of Rule 144 and Rule 144A promulgated under the Securities Act and other rules and regulations of the Commission that may at any time permit the Investor to sell securities of the Company agrees to the public without registration, the Company covenants that it shall cause each of its directorsuse commercially reasonable efforts to (i) file in a timely manner all reports and other documents required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder and (ii) take such further action as the Investor may reasonably request (including providing any information necessary to comply with Rule 144 and Rule 144A, officers and shareholders owning ten percent (10%) or more if available with respect to resales of the Company's outstanding Common Stock Registrable Securities under the Securities Act), at all times, all to refrain the extent required from selling any shares time to time to enable the Investor to sell Registrable Securities without registration under the Securities Act within the limitation of the Company's Common Stock until the Registration Statement has been declared effective.
exemptions provided by (hx) Each Holder, on behalf of itself Rule 144 and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer Rule 144A (if available with respect to "short sell", contract to "short sell" or otherwise "short sell" any securities resales of the CompanyRegistrable Securities) under the Securities Act, includingas such rules may be amended from time to time, without limitation, shares of Common Stock that will be received as a result of or (y) any other rules or regulations now existing or hereafter adopted by the conversion of the Series A Stock or the exercise of the Warrants.Commission
Appears in 1 contract
Samples: Registration Rights Agreement (Environmental Solutions Worldwide Inc)
Additional Terms. Notwithstanding anything to the contrary contained hereinbefore, the parties have mutually agreed to the following terms which shall be valid and binding on them in addition to and/or in modification/supercession of those contained hereinbefore:
(ai) The Company shall indemnify Besides the additions and hold harmless alterations permissible under the Holders Act and/or Rules, the Allottee has consented to and/or hereby irrevocably consents that the Second Party/Promoter may make modifications, additions and each underwriter, alterations within permissible and/or prevailing norms regarding the meaning construction and the specifications of the Securities ActBuilding, who the Common Areas, the ground floor layout and/or the said Office Unit as may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused be deemed necessary and/or as may be advised by the Architects and/or as may be required by any untrue statement of a material fact contained in authority including the Registration Statement, any other registration statement filed by Corporation and the Company same is and shall be deemed to be the previous written consent under the Securities Act with respect Act. Prior to the registration booking of the Registrable Securities, any post-effective amendment said Office Unit the Allottee had been informed and made aware that the ground floor layout including the Common Areas and its location may undergo changes and/or modifications and the Allottee has consented to such registration statements, or any prospectus included therein or caused by any omission and/or hereby consents to state therein a material fact required the same and this is and shall be deemed to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning previous written consent of the Securities Act Allottee in terms of the Act. It is agreed that such modifications, additions and/or alterations shall not affect the Total Price and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification total number of Common Areas mentioned in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company Schedule ‘E’ shall not be obligated reduced to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning detriment of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use thereinAllottee.
(bii) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault The decision of the indemnified party Architects regarding the quality and specifications of the materials and the indemnifying party, as well as any other relevant equitable considerationsworkmanship regarding construction shall be final and binding on the parties.
(ciii) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon At the request of any Holderthe Allottee, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, Second Party/Promoter may at its option and subject to such conditions as it may deem fit, allow the terms Allottee to have temporary access to the said Office for interior and provisions hereof.
(f) Each Holder agrees furniture works provided all dues payable to provide the Company with any information or undertakings reasonably requested Second Party/Promoter are paid in full by the Company Allottee. The Allottee shall complete the interiors and furniture works without disturbing or causing inconvenience to the Second Party/Promoter or the occupants of other Units in order the Building and without making any change in the structure and construction of the said Office. During such period of temporary access the Second Party/Promoter shall continue to be in possession of the said Office and the Allottee shall only have a revocable and temporary license to have access to the same for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it aforesaid limited purpose and shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.be
Appears in 1 contract
Samples: Sale Agreement
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's ’s Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's ’s outstanding Common Stock to refrain from selling any shares of the Company's ’s Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "“short sell"”, contract to "“short sell" ” or otherwise "“short sell" ” any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders Holder and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any the Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or of omission based upon information furnished or required to be furnished in writing to the Company by the Holders Holder or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any either the Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each the Holder and underwriter; provided, however, that the indemnification in this Section Article 4(a) with respect to any prospectus shall not inure to the benefit of any the Holder or underwriter (or to the benefit of any person controlling any the Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such the Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale sale; and provided further, that the Company shall not be obligated to so indemnify any the Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the indemnified party and the indemnifying party, but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any the Holder any obligation to sell the Holder's Registrable Securities.
(d) Each The Holder, upon receipt of notice from the Company that an event has occurred which requires a Postpost-Effective Amendment effective amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to in Article 2 above continuously effective during the requisite period, then the Company shall, shall promptly upon the request of any Holder, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliatesaffiliates and the permitted assignee of any Conversion Shares or Warrant Shares, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. (a) A. The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) B. If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) C. Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) D. Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) E. If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) F. Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Samples: Subscription Agreement (International Card Establishment Inc)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) The Holder shall indemnify and hold harmless the Company, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any material untrue statement or material omission based upon information furnished in writing to the Company by the Holder expressly for use therein.
(c) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(cd) Promptly after receipt by an indemnified party under this Section 4 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 4, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential conflict of interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of liability to the indemnified party under this Section 4 only to the extent the indemnifying party is prejudiced as a result thereof.
(e) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's ’s Registrable Securities.
(df) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(eg) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best commercially reasonable efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof, so that the registration of such unsold Registered Securities is maintained for a number of days beyond the Expiration Date equal to the number of days that the Holder is unable to sell pursuant to Section 4(f) above.
(fh) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(gi) The Company agrees that it shall cause each of Each Holder, by its directors, officers and shareholders owning ten percent (10%) or more acceptance of the Company's outstanding Common Stock Registrable Securities, agrees to refrain from selling any shares cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of the Company's Common Stock until the a Registration Statement has been declared effectivehereunder.
(hj) Each Holder, on behalf of itself and itself, its affiliates, its successors and assigns and any other direct or indirect transferee holding any of the Warrants, the Series H Stock or the Registrable Securities, hereby covenants and agrees not to, directly or indirectly, offer to "“short sell"”, contract to "“short sell" ” or otherwise "“short sell" ” or encourage others to “short sell” any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A H Stock or the exercise of the Warrants. For purposes of this Agreement, “short selling” shall include any sale, any trade in any option or other derivative security, any hedging transaction relating to the securities of the Company or any transaction intended to affect the price of the Company’s common stock.
(k) If requested in writing by the Company and the managing underwriter of an underwritten registered public offering by the Company of its Common Stock, the Holders shall agree not to sell or otherwise transfer or dispose of any Common Stock of the Company held by such Holders (other than those included in the registration statement) for a period not to exceed 90 days following the effective date of a registration statement of the Company filed under the Securities Act, provided that all officers and directors of the Company enter into similar agreements identical in terms to that of the Holders.
Appears in 1 contract
Samples: Registration Rights Agreement (Spescom Software Inc)
Additional Terms. (a) The Company shall indemnify Tenant specifically acknowledges and hold harmless agrees that Landlord will sell and Tenant will purchase the Holders Premises on an "as is with all faults" basis, subject to all exceptions to and each underwriterdefects of title, within whether or not of record (but subject also to Tenant's rights and Landlord's obligations as set forth below), and that Tenant will not rely on nor will Landlord or any of its Affiliates be deemed to have made, any representations or warranties of any kind, express or implied including, without limitation, those in connection with the meaning physical condition of the Securities ActPremises (including, who may purchase from or sell for any Holderwithout limitation, any Registrable Securitiesmatters involving Hazardous Substances or compliance with any Laws), from or the nature of title to the Premises, or the advisability of Tenant's purchase of the Premises). However, until and against unless Tenant otherwise agrees in writing or defaults Landlord will not voluntarily execute any and all lossesdocuments affecting title that materially adversely affect Tenant's operations or that render title to the Premises unmarketable (but easements, claimsdedications or other documents for access, damages and liabilities caused by drainage, utilities or services (including cabling), curb cuts, or as otherwise may be needed to comply with applicable Laws or to enable Landlord to meet its obligations under this Lease or in connection with the construction of any untrue statement new building(s) or the enlargement of the Building per this Lease will not be deemed to be violations of this restriction). If this restriction is violated after the exercise of a material fact contained Purchase Option, Tenant shall have the right to terminate that Purchase Option without liability and receive the Deposit back. Notwithstanding the foregoing, even if Tenant has validly exercised a Purchase Option, Tenant shall have the right to terminate that Purchase Option without liability (except for Landlord's out-of-pocket costs) and shall not be required to close the purchase if, after the exercise of the Purchase Option but prior to closing, there is a casualty that causes damage of the type and to the extent described in Section 16.2(b)(x) such that Tenant otherwise would have the right to terminate this Lease, and in the Registration Statement, any other registration statement filed reasonable judgement of a qualified independent contractor hired by Landlord it will take more than two (2) years from the Company under the Securities Act with respect to the registration date of the Registrable Securitiesdamage to restore access or restore or replace the destroyed parking spaces or substantially complete the repairs that Landlord would have been required to make, any post-effective amendment and Tenant notifies Landlord of its intent to such registration statementsterminate within thirty (30) days after receiving the notice from Landlord's contractor, which shall be provided as soon as reasonably practicable after the damage occurs. If these circumstances occur, the closing date shall be extended as necessary to accomodate this thirty (30)-day period. If Tenant does not so terminate, or any prospectus included therein or caused by any omission if Tenant is not permitted to state therein so terminate as a material fact required to be stated therein or necessary to make the statements therein not misleadingresult of a casualty, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect closing Landlord will assign to any prospectus shall not inure Tenant all casualty insurance proceeds otherwise payable to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) Landlord on account of any such loss, claim, the damage or liability arising from and all rights and claims in connection therewith (other than those which Landlord was entitled to receive for the sale of Registrable Securities by period and/or for the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company work and services performed prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter closing). Notwithstanding anything to the purchaser contrary, if Landlord is in the process of repairing or rebuilding casualty damage and Tenant subsequently validly exercises a Purchase Option: Landlord will continue the process of repairing or rebuilding as otherwise required in this Lease until the closing date under the Purchase Option; Tenant will be deemed to have waived its right to terminate this Lease under Article 16, and its right to terminate the Purchase Option in connection with that casualty or any repairs or rebuilding in connection therewith; Landlord will assign to Tenant as of the closing all casualty insurance proceeds otherwise payable to Landlord on account of the damage and all rights and claims in connection therewith (other than those which Landlord was entitled to receive for the period and/or for the work and services performed prior to such sale the closing), and provided further, that Landlord shall assign to Tenant and Tenant shall assume all rights and Liabilities of Landlord under the Company contracts entered into in connection with the repair or rebuilding to the extent assignable and Tenant shall not indemnify Landlord and its Affiliates for and hold them harmless from all Liabilities in connection therewith; and Landlord shall be obligated to so indemnify any Holder continue to repair or any such underwriter or other person referred rebuild after the closing date only if and to above unless the Holder or underwriter or other person, as the case may be, shall extent actually agreed to by Landlord and Tenant in good faith and in writing at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use thereintime.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault As of the indemnified party closing, Tenant and the indemnifying partyits Affiliates will be deemed to have released and discharged Landlord and its Affiliates from, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant and to this Agreement nor the making have waived, all Liabilities of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holdertype, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement known or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Companyunknown, including, without limitation, shares Liabilities under or in connection with this Lease and/or the Premises (except as set forth in the last sentence of Common Stock Subsection (c) below). As a condition to closing, Landlord may require that will be received Landlord's Mortgagees release Landlord and its Affiliates from Liabilities under or in connection with any Superior Lease or Mortgages. From and after the closing, Tenant shall indemnify, defand and hold Landlord free and harmless from all Liabilities under or in connection with this Lease and/or the Premises and/or the purchase thereof (except as set forth in the last sentence of Subsection (c) below).
(c) Time is of the essence in this Addendum. If Tenant defaults hereunder after the closing under a Purchase Option or Tenant or Landlord defaults under any of the documents delivered by it in connection therewith, in addition to any rights and remedies available to each of the respective parties, each party shall have all rights and remedies at law and in equity, all of which are cumulative and not exclusive, including, without limitation, the right to require specific performance. The exercise of a Purchase Option or any closing as a result thereof shall not relieve Tenant or Landlord from any Liabilities for any defaults under this Lease, nor will they extinguish Liabilities for any indemnities or other obligations that survive pursuant to the terms of the conversion rest of this Lease or this Addendum.
(d) Notwithstanding anything to the contrary, as of the Series A Stock date of the first occurrence of any of the following, at Landlord's election all of Tenant's rights and Landlord's obligations under or in connection with this Addendum will lapse and become null and void upon:
(i) The expiration of the Lease term (as validly extended) or termination of this Lease in accordance with its terms prior to the exercise of a Purchase Option or any closing thereunder; or
(ii) The bona fide purchase or other acquisition of all or substantially all of the WarrantsPremises by any person or entity (including, without limitation, Tenant or its Affiliates) other than by any of Landlord's Control Affiliates prior to the exercise of a Purchase Option and other than any sale or conveyance which is prohibited under this Lease; or
(iii) [INTENTIONALLY OMITTED]
(e) Notwithstanding anything to the contrary, Tenant's rights and Landlord's obligations under or in connection with this Addendum will not be binding on and will not affect or otherwise apply in any way to Landlord's Mortgagees or their successors, assigns and purchasers, or their respective Affiliates, whether or not they take title to or acquire all or substantially all of the Premises.
Appears in 1 contract
Samples: Lease (Polycom Inc)
Additional Terms. (a) The To the extent permitted by law, the Company shall will indemnify each Holder, each of its officers, directors, partners, legal counsel, and hold harmless the Holders accountants, and each underwriter, person controlling such Holder within the meaning of Section 15 of the Securities Act, with respect to which registration, qualification, or compliance has been effected pursuant to this Agreement, and each underwriter, if any, and each person who may purchase from or sell for controls any Holderunderwriter within the meaning of Section 15 of the Securities Act, any Registrable Securities, from and against any and all lossesexpenses, claims, damages and losses, damages, or liabilities caused by (or actions, proceedings, or settlements in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular, or other document (including any related registration statement, notification, or the Registration Statementlike), or any other registration statement filed amendment or supplement thereto, incident to any such registration, qualification, or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any violation by the Company of the Securities Act or any rule or regulation promulgated under the Securities Act with respect applicable to the Company in connection with any such registration, qualification, or compliance, and the Company will reimburse each such Holder, each of its officers, directors, partners, legal counsel, and accountants, and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating, preparing, defending, or settling any such claim, loss, damage, liability, or action, as such expenses are incurred, provided that the Company will not be liable in any such case to the extent that any such claim, loss, damage, liability, or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, (i) made in reliance upon and in conformity with written information furnished to the Company by such Holder, controlling person, or underwriter and stated to be specifically for use therein or (ii) corrected in an amended or supplemented registration statement, prospectus or offering circular provided by the Company for use prior to the purchase giving rise to such claim, loss, damage, liability or expense. It is agreed that the indemnity agreement contained in this Section 4 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld).
(b) To the extent permitted by law, each Holder will, if Registrable SecuritiesSecurities held by such Holder are included in the securities as to which such registration, qualification, or compliance is being effected, indemnify the Company, each of its directors, officers, partners, legal counsel, and accountants, and each underwriter, if any, of the Company’s securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act, and each other such Holder, each of their officers, directors, and partners, and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all claims, losses, damages, and liabilities (or actions in respect thereof) arising out of or based on any post-effective amendment to untrue statement (or alleged untrue statement) of a material fact contained in any such registration statementsstatement, prospectus, offering circular, or other document, or any prospectus included therein omission (or caused by any omission alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar and will reimburse the Company and such Holders, directors, officers, partners, legal counsel, and accountants, persons, underwriters, or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability, or action, as such lossesexpenses are incurred, claimsin each case to the extent, damages or liabilities are caused by any but only to the extent, that such untrue statement (or alleged untrue statement) or omission based (or alleged omission) is made in such registration statement, prospectus, offering circular, or other document in reliance upon and in conformity with written information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly such Holder and stated to be specifically for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus obligations of such Holder hereunder shall not inure apply to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account amounts paid in settlement of any such lossclaims, claimlosses, damage damages, or liability arising from liabilities (or actions in respect thereof) if such settlement is effected without the sale consent of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company (which consent shall not be obligated to so indemnify unreasonably withheld); and provided that that in no event shall any indemnity under this Section 4 exceed the gross proceeds received by such Holder or any in such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use thereinoffering.
(bc) Each party entitled to indemnification under this Section 4 (the “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party’s expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 4 unless the failure to give such notice is materially prejudicial to an Indemnifying Party’s ability to defend such action. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with the defense of such claim and litigation resulting therefrom.
(d) If for any reason the indemnification provided for in the preceding section this Section 4 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party with respect to any claim, loss, claim, damage, liability liability, or expense referred to therein, then the indemnifying partyIndemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party hereunder, shall contribute to the amount paid or payable by the indemnified party such Indemnified Party as a result of such claim, loss, claimdamage, damage liability, or liability expense in such proportion as is appropriate to reflect the relative fault of the indemnified party Indemnifying Party on the one hand and the indemnifying partyIndemnified party on the other in connection with the statements or omissions that resulted in such claim, loss, damage, liability, or expense, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact related to information supplied by the Indemnifying Party or by the Indemnified Party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 4 were based solely upon the number of entities from whom contribution was requested or by any other method of allocation which does not take account of the equitable considerations referred to above. In no event shall any contribution by a Holder under this Section 4 exceed the gross proceeds received by such Holder in such offering.
(ce) The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages, and liabilities referred to above in this Section 4 shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim, subject to the provisions of Section 4(c). No person guilty of fraudulent misrepresentation (within the meaning of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(f) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.
(g) The obligations of the Company and Holders under this Section 4 shall survive the completion of any offering of Registrable Securities in a Registration Statement. Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the any Holder shall impose upon any Holder any obligation to sell the such Holder's ’s Registrable Securities.
(dh) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Postpost-Effective effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the such Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(ei) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best commercially reasonable efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof, so that the registration of such unsold Registered Securities is maintained for a number of days beyond the Expiration Date equal to the number of days that such Holder is unable to sell pursuant to Section 4(h) above.
(fj) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the such Holder in the Registration Statement or in order to promote compliance by the Company or the such Holder with the Securities Act.
(gk) The Company agrees that it shall cause each of Each Holder, by its directors, officers and shareholders owning ten percent (10%) or more acceptance of the Company's outstanding Common Stock Registrable Securities, agrees to refrain from selling any shares cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of the Company's Common Stock until the a Registration Statement has been declared effectivehereunder.
(hl) Each Holder, on behalf of itself and itself, its affiliates, its successors and assigns and any other direct or indirect transferee holding any of the Warrants, the Series J Stock or the Registrable Securities, hereby covenants and agrees not to, directly or indirectly, offer to "“short sell"”, contract to "“short sell" ” or otherwise "“short sell" ” or encourage others to “short sell” any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A J Stock or the exercise of the Warrants. For purposes of this Agreement, “short selling” shall include any sale, any trade in any option or other derivative security, any hedging transaction relating to the securities of the Company or any transaction intended to affect the price of the Company’s common stock.
Appears in 1 contract
Samples: Registration Rights Agreement (Diametrics Medical Inc)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A I Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. (a) The Company shall indemnify Tenant specifically acknowledges and hold harmless agrees that Landlord will sell and Tenant will purchase the Holders Premises on an "as is with all faults" basis, subject to all exceptions to and each underwriterdefects of title, within whether or not of record (but subject also to Tenant's rights and Landlord's obligations as set forth below), and that Tenant will not rely on nor will Landlord or any of its Affiliates be deemed to have made, any representations or warranties of any kind, express or implied including, without limitation, those in connection with the meaning physical condition of the Securities ActPremises (including, who may purchase from or sell for any Holderwithout limitation, any Registrable Securitiesmatters involving Hazardous Substances or compliance with any Laws), from or the nature of title to the Premises, or the advisability of Tenant's purchase of the Premises). However, until and against unless Tenant otherwise agrees in writing or defaults Landlord will not voluntarily execute any and all lossesdocuments affecting title that materially adversely affect Tenant's operations or that render title to the Premises unmarketable (but easements, claimsdedications or other documents for access, damages and liabilities caused by drainage, utilities or services (including cabling), curb cuts, or as otherwise may be needed to comply with applicable Laws or to enable Landlord to meet its obligations under this Lease or in connection with the construction of any untrue statement new building(s) or the enlargement of the Building per this Lease, will not be deemed to be violations of this restriction). If this restriction is violated after the exercise of a material fact contained Purchase Option, Tenant shall have the right to terminate that Purchase Option without ADDENDUM #4 Page 2 of 4 90 liability and receive the Deposit back. Notwithstanding the foregoing, even if Tenant has validly exercised a Purchase Option, Tenant shall have the right to terminate that Purchase Option without liability (except for Landlord's out-of-pocket costs) and shall not be required to close the purchase if, after the exercise of the Purchase Option but prior to closing, there is a casualty that causes damage of the type and to the extent described in Section 16.2(b)(x) such that Tenant otherwise would have the right to terminate this Lease, and in the Registration Statement, any other registration statement filed reasonable judgement of a qualified independent contractor hired by Landlord it will take more than two (2) years from the Company under the Securities Act with respect to the registration date of the Registrable Securitiesdamage to restore access or restore or replace the destroyed parking spaces or substantially complete the repairs that Landlord would have been required to make, any post-effective amendment and Tenant notifies Landlord of its intent to such registration statementsterminate within thirty (30) days after receiving the notice from Landlord's contractor, which shall be provided as soon as reasonably practicable after the damage occurs. If these circumstances occur, the closing date shall be extended as necessary to accommodate this thirty (30)- day period. If Tenant does not so terminate, or any prospectus included therein or caused by any omission if Tenant is not permitted to state therein so terminate as a material fact required to be stated therein or necessary to make the statements therein not misleadingresult of a casualty, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect closing Landlord will assign to any prospectus shall not inure Tenant all casualty insurance proceeds otherwise payable to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) Landlord on account of any such loss, claim, the damage or liability arising from and all rights and claims in connection therewith (other than those which Landlord was entitled to receive for the sale of Registrable Securities by period and/or for the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company work and services performed prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter closing). Notwithstanding anything to the purchaser contrary, if Landlord is in the process of repairing or rebuilding casualty damage and Tenant subsequently validly exercises a Purchase Option: Landlord will continue the process of repairing or rebuilding as otherwise required in this Lease until the closing date under the Purchase Option; Tenant will be deemed to have waived its right to terminate this Lease under Article 16, and its right to terminate the Purchase Option in connection with that casualty or any repairs or rebuilding in connection therewith; Landlord will assign to Tenant as of the closing all casualty insurance proceeds otherwise payable to Landlord on account of the damage and all rights and claims in connection therewith (other than those which Landlord was entitled to receive for the period and/or for the work and services performed prior to such sale the closing), and provided further, that Landlord shall assign to Tenant and Tenant shall assume all rights and Liabilities of Landlord under the Company contracts entered into in connection with the repair or rebuilding to the extent assignable and Tenant shall not indemnify Landlord and its Affiliates for and hold them harmless from all Liabilities in connection therewith; and Landlord shall be obligated to so indemnify any Holder continue to repair or any such underwriter or other person referred rebuild after the closing date only if and to above unless the Holder or underwriter or other person, as the case may be, shall extent actually agreed to by Landlord and Tenant in good faith and in writing at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use thereintime.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault As of the indemnified party closing, Tenant and the indemnifying partyits Affiliates will be deemed to have released and discharged Landlord and its Affiliates from, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant and to this Agreement nor the making have waived, all Liabilities of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holdertype, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement known or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Companyunknown, including, without limitation, shares Liabilities under or in connection with this Lease and/or the Premises (except as set forth in the last sentence of Common Stock Subsection (c) below). As a condition to closing, Landlord may require that will be received Landlord's Mortgagees release Landlord and its Affiliates from Liabilities under or in connection with any Superior Leases or Mortgages. From and after the closing, Tenant shall indemnify, defend and hold Landlord free and harmless from all Liabilities under or in connection with this Lease and/or the Premises and/or the purchase thereof (except as a result set forth in the last sentence of the conversion of the Series A Stock or the exercise of the WarrantsSubsection (c) below).
Appears in 1 contract
Samples: Lease (Picturetel Corp)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) The Holder shall indemnify and hold harmless the Company, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any material untrue statement or material omission based upon information furnished in writing to the Company by the Holder expressly for use therein.
(c) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(cd) Promptly after receipt by an indemnified party under this Section 4 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 4, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential conflict of interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of liability to the indemnified party under this Section 4 only to the extent the indemnifying party is prejudiced as a result thereof.
(e) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's ’s Registrable Securities.
(df) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(eg) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best commercially reasonable efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof, so that the registration of such unsold Registered Securities is maintained for a number of days beyond the Expiration Date equal to the number of days that the Holder is unable to sell pursuant to Section 4(f) above.
(fh) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(gi) The Company agrees that it shall cause each of Each Holder, by its directors, officers and shareholders owning ten percent (10%) or more acceptance of the Company's outstanding Common Stock Registrable Securities, agrees to refrain from selling any shares cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of the Company's Common Stock until the a Registration Statement has been declared effectivehereunder.
(hj) Each Holder, on behalf of itself and itself, its affiliates, its successors and assigns and any other direct or indirect transferee holding any of the Warrants, the Series G Stock or the Registrable Securities, hereby covenants and agrees not to, directly or indirectly, offer to "“short sell"”, contract to "“short sell" ” or otherwise "“short sell" ” or encourage others to “short sell” any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A G Stock or the exercise of the Warrants. For purposes of this Agreement, “short selling” shall include any sale, any trade in any option or other derivative security, any hedging transaction relating to the securities of the Company or any transaction intended to affect the price of the Company’s common stock.
(k) If requested in writing by the Company and the managing underwriter of an underwritten registered public offering by the Company of its Common Stock, the Holders shall agree not to sell or otherwise transfer or dispose of any Common Stock of the Company held by such Holders (other than those included in the registration statement) for a period not to exceed 90 days following the effective date of a registration statement of the Company filed under the Securities Act, provided that all officers and directors of the Company enter into similar agreements identical in terms to that of the Holders.
Appears in 1 contract
Samples: Registration Rights Agreement (Spescom Software Inc)
Additional Terms. Notwithstanding anything to the contrary contained hereinbefore, the parties have mutually agreed to the following terms which shall be valid and binding on them in addition to and/or in modification/supercession of those contained hereinbefore:
(ai) The Company shall indemnify Besides the additions and hold harmless alterations permissible under the Holders Act and/or Rules, the Allottee has consented to and/or hereby irrevocably consents that the Promoter may make modifications, additions and each underwriter, alterations within permissible and/or prevailing norms regarding the meaning construction and the specifications of the Securities ActBuilding, who the Common Areas, the ground floor layout and/or the said Apartment as may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused be deemed necessary by the Promoter and/or as may be advised by the Architects and/or as may be required by any untrue statement of a material fact contained in authority including the Registration Statement, any other registration statement filed by Corporation and the Company same is and shall be deemed to be the previous written consent under the Securities Act with respect Act. Prior to the registration booking of the Registrable Securitiessaid Apartment Unit the Allottee had been informed and made aware that the ground floor layout, any post-effective amendment roof layout, including the Common Areas and its location may undergo changes and/or modifications and the Allottee has consented to such registration statements, or any prospectus included therein or caused by any omission and/or hereby consents to state therein a material fact required the same and this is and shall be deemed to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning previous written consent of the Securities Act Allottee in terms of the Act. It is agreed that such modifications, additions and/or alterations shall not affect the Total Price/Agreed Consideration and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification total quantum of Common Areas mentioned in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company Schedule ‘E’ shall not be obligated reduced to so indemnify the detriment of the Allottee.
(ii) The decision of the Architects regarding the quality and specifications of the materials and the workmanship regarding construction and completion as also regarding structural defect/damage shall be final and binding on the parties.
(iii) With effect from the Date of Possession and/or the date of expiry of the period specified in the Notice mentioned in Clause 7.2, whichever is earlier, the Allottee shall be deemed to have fully satisfied himself in all respects including the Plans, the construction and the quality, specifications and workmanship thereof, the carpet area and built-up area and super built-up area, the quality of materials used, the structural stability and completion of the Building, the Common Areas, the said Apartment, etc. and shall not thereafter be entitled to raise any Holder objection or dispute or make any such underwriter claim regarding the same.
(iv) From the Date of Possession, the Allottee shall be liable to pay the monthly charges for use of electricity to the said Apartment Unit as per sub-meter/independent meter installed for the same within seven days of issue of bill.
(v) Within 30 days of the Date of Possession or other person referred within 30 days from the date of execution of the Deed of Conveyance, whichever is earlier, the Allottee shall apply for mutation to above unless the Holder or underwriter or other personAuthorities and shall take all necessary steps and complete, as the case may be, shall at the same time indemnify Allottee’s own costs, the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning mutation of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained said Apartment Unit in the Registration StatementAllottee’s name within 2 months thereafter.
(vi) In case of there being a failure, refusal, neglect, breach, violation, non-compliance or default on the part of the Allottee to perform or comply with any registration statement or any prospectus required to be filed or furnished by reason of the terms, conditions, covenants, undertakings, stipulations, restrictions, prohibitions and/or obligations under this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to thereinotherwise under law, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, Promoter shall contribute be entitled to issue a Notice to the amount paid Allottee calling upon the Allottee to rectify, remedy, make good or payable by set right the indemnified party as a result same within one month from the date of issue of such loss, claim, damage or liability in such proportion as is appropriate Notice. If the Allottee does not comply with the said Notice to reflect the relative fault satisfaction of the indemnified party and Promoter within the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite periodtime, then the Company shall, promptly upon the request of any Holder, use best efforts Allottee shall be liable to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject pay to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested Promoter compensation and/or damages that may be quantified by the Company Promoter and in order for default of such payment within 30 days, the Company to include any appropriate information concerning Promoter may terminate the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more allotment /Agreement of the Company's outstanding Common Stock to refrain from selling any shares said Apartment in favour of the Company's Common Stock until Allottee. In case of termination the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.provisions under sub-clause 9.3
Appears in 1 contract
Samples: Sale Agreement
Additional Terms. (a) The To the extent permitted by law, the Company shall will indemnify and hold harmless the Holders Investor, its agents, trustees and beneficiaries, partners or officers, directors and shareholders of the Investor, legal counsel and accountants for the Investor, and each underwriter, person who controls the Investor within the meaning of the Securities Act or the Exchange Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and or liabilities caused by (joint or several) to which they may become subject under the Securities Act, the Exchange Act, any state securities laws or other laws, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "VIOLATION"): (i) any untrue statement or alleged untrue statement of a material fact contained in the such Registration Statement, including any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, preliminary prospectus or final prospectus contained therein or any prospectus included therein amendments or caused by any supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading, except insofar as or (iii) any Violation or alleged Violation by the Company of the Securities Act, the Exchange Act, any state securities laws or other laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities laws; and the Company will reimburse the indemnified party under this Section 4(a), for any reasonable legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the indemnity described herein shall not apply any loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with written information furnished by the Investor (or any agent of the Investor) expressly for use in connection with such registration by the Investor; PROVIDED FURTHER, HOWEVER, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of the Investor, from whom the person asserting any such losses, claims, damages or liabilities are caused by any such untrue statement purchased shares in the offering, if a copy of the prospectus (as then amended or omission based upon information furnished or required to be furnished in writing to supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by the Holders or underwriter expressly for use therein, which indemnification shall include each on behalf of such Investor to such person, if anyrequired by law so to have been delivered, who controls any Holder at or underwriter within prior to the meaning written confirmation of the Securities Act sale of the shares to such person, and each officer, director, employee and agent of each Holder and underwriter; provided, however, that if the indemnification in this Section 4(aprospectus (as so amended or supplemented) with respect would have cured the defect giving rise to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from liability.
(b) To the sale of Registrable Securities extent permitted by law, the Holder or underwriterInvestor will severally, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale jointly, indemnify and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify hold harmless the Company, each of its directors, each officer signing of its officers who has signed the Registration Statement and registration statement, each person, if any, who controls the Company within the meaning of the Securities ActAct or the Exchange Act and legal counsel and accountants for the Company, from and against any and all losses, claims, damages and or liabilities caused by to which any untrue statement of a material fact contained in the Registration Statementforegoing persons may become subject, any registration statement under the Securities Act, the Exchange Act or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleadingsecurities laws, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are caused by any untrue statement or omission based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information specifically furnished by the Investor expressly for use in connection with such registration which consists solely of the information specified in Section 4(d); and the Investor will reimburse any person intended to be indemnified pursuant to the foregoing, for any legal or other expenses reasonably incurred by such person in connection with investigating or defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the indemnity obligation of the Investor hereunder shall not in any event exceed the net proceeds received by the Investor from the offering giving rise to such liability.
(c) Promptly after receipt by an indemnified party of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party will deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel reasonably satisfactory to each party; PROVIDED, HOWEVER, that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the reasonable fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this paragraph. After notice from an indemnifying party to such indemnified party of its election to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of this paragraph for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (i) the indemnified party shall have employed counsel in accordance with the first sentence of this paragraph or (ii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent; PROVIDED, HOWEVER, that the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the indemnified party, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the indemnified party with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made.
(d) The Investor confirms, and the Company acknowledges, that the information to appear in the table in the section entitled "Principal and Selling Shareholders" or equivalently named section in the Registration Statement under the headings "Name of Beneficial Owner," "Shares Beneficially Owned Prior to Offering - Number of Shares," "Maximum Number of Shares Offered in this Offering," or equivalently named headings in the Registration Statement and in the footnote related to such information pertaining to the Investor constitute the only information concerning the Investor that will be furnished in writing to the Company by or on behalf of the Holder or underwriter expressly Investor for use thereininclusion in the Registration Statement.
(be) If for any reason the indemnification provided for in the preceding section above is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage, liability damage or expense referred to thereinherein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunderhereunder, shall contribute to the amount paid or payable by the such indemnified party as a result of such loss, liability, claim, damage or liability expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party and on the indemnifying partyother in connection with the statements or omissions that resulted in such loss, liability, claim, damage or expense, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. No person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding any other provision of this Section, the Investor shall not be required to contribute any amount in excess of the amount by which the net proceeds received by such Investor from the sale of the shares of the Common Stock issued upon conversion of the Debenture pursuant to a Registration Statement exceeds the amount of damages which the Investor has otherwise been required to pay be reason of such untrue or alleged untrue statement or alleged omission. The obligation of the Investor obliged to make contribution pursuant to this Section shall be several and not joint.
(cf) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder Investor shall impose upon any Holder the Investor any obligation to sell the HolderInvestor's beneficially owned Registrable Securities.
(dg) Each HolderThe Investor, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder Investor receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(eh) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holderthe Investor, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(fi) Each Holder The Investor agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder Issuer in the Registration Statement or in order to promote compliance by the Company or the Holder Issuers with the Securities Act.
(gj) The With a view to making available to the Investor the benefits of Rule 144 and Rule 144A promulgated under the Securities Act and other rules and regulations of the Commission that may at any time permit the Investor to sell securities of the Company agrees to the public without registration, the Company covenants that it shall cause each of its directorsuse commercially reasonable efforts to (i) file in a timely manner all reports and other documents required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder and (ii) take such further action as the Investor may reasonably request (including providing any information necessary to comply with Rule 144 and Rule 144A, officers and shareholders owning ten percent (10%) or more if available with respect to resales of the Company's outstanding Common Stock Registrable Securities under the Securities Act), at all times, all to refrain the extent required from selling any shares time to time to enable the Investor to sell Registrable Securities without registration under the Securities Act within the limitation of the Company's Common Stock until the Registration Statement has been declared effective.
exemptions provided by (hx) Each Holder, on behalf of itself Rule 144 and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer Rule 144A (if available with respect to "short sell", contract to "short sell" or otherwise "short sell" any securities resales of the CompanyRegistrable Securities) under the Securities Act, includingas such rules may be amended from time to time, without limitation, shares of Common Stock that will be received as a result of or (y) any other rules or regulations now existing or hereafter adopted by the conversion of the Series A Stock or the exercise of the Warrants.Commission
Appears in 1 contract
Samples: Registration Rights Agreement (Environmental Solutions Worldwide Inc)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, directors and officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock Ordinary Shares until the Registration Statement has been declared effective.
(h) Each Commencing on the date hereof and continuing until such time as the Debentures and Warrants are no longer outstanding, each Holder, on behalf of itself themselves and its their affiliates, hereby covenants covenant and agrees agree not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any the securities of the Company, including, without limitation, shares of Common Stock Ordinary Shares that will be received as a result of the conversion of the Series A Stock Debentures or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's ’s outstanding Common Stock to refrain from selling any shares of the Company's ’s Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Common Stock Stock or the exercise of the Warrants.
Appears in 1 contract
Samples: Registration Rights Agreement (Universal Guardian Holdings Inc)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning Prior to recording of the Securities ActDeeds in the appropriate county records, who may purchase from the risk of loss or sell for any Holder, any Registrable Securities, from and against any damage to the Property and all lossesliability to third persons shall be borne by Conveying Parties, claimsexcept solely arising out of or relating to the acts or omissions of Lender Parties after the Closing Date upon the Property, damages and liabilities caused for which Lender Parties shall be responsible, which obligation shall survive Closing.
(b) Insurance policies for the Property maintained by any untrue statement of a material fact contained Conveying Parties will be maintained until, but terminated at midnight Arizona time on, the day of the recording of the Deeds in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriterappropriate county records; provided, however, that Lender Parties may, at their reasonable discretion, direct Conveying Parties to maintain, modify or amend any or all of such insurance policies as of the indemnification Closing Date by providing written notice to Conveying Parties on or prior to the fifteenth (15th) Business Day prior to the Closing Date. The Conveying Parties will cause the Lender Parties to be named as additional insureds on all such insurance policies and shall provide proof of such insurance to the Lender Parties within ten (10) Business Days prior to the Closing Date. Thereafter, the Transferee Entities will be responsible for insuring the Property. Any short rate cancellation premium refunds are assigned to and will be paid to the Transferee Entities.
(c) To the extent Noteholders and/or IMHFC are required to make certain filings pursuant to federal or state securities or other law, including one or more Form 8-Ks in connection with this Agreement and the transactions contemplated herein, Noteholders and/or IMHFC will use reasonable efforts to provide Xxxxxxx a reasonable opportunity to review such proposed filings or the key information intended to be included therein. The parties hereto agree to fully cooperate, prior to and after Closing, in accomplishing such filings and disclosures, without unreasonable cost or liability to Conveying Parties. This Section 4(a) with respect to any prospectus shall survive the Closing and shall not terminate.
(d) No Conveying Party may assign any right, title or interest in, to or under this Agreement without the prior written consent of the Lender Parties, which consent may be withheld in its sole discretion. Any attempted assignment in violation of this paragraph shall be null and void and shall constitute a default hereunder. This Agreement shall be binding upon and shall inure to the benefit of any Holder or underwriter (or the parties hereto and their respective successors and assigns, subject to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason foregoing provisions of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such noticeparagraph.
(e) If For one year following the Company fails Closing, Transferee Entities shall permit Conveying Parties reasonable access on five (5) days prior notice with reasonable frequency to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject all books and records pertaining to the terms Property and provisions hereofits operations for periods prior to the Closing Date to permit Borrower Parties to prepare tax returns and address other customary and reasonable pre-Closing matters.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities ActIntentionally Omitted.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. The following provisions shall be applicable to any ---------------- Registration Statement filed pursuant to Section 1 of this Agreement:
(a) The If any stop order shall be issued by the Commission in connection with registration hereunder, the Company shall indemnify and hold harmless will use its reasonable efforts to obtain the Holders and each underwriter, within removal of such order. Following the meaning effective date of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any the Company shall, upon the request of the Holder, forthwith supply such reasonable number of copies of the Registration Statement, preliminary prospectus and prospectus meeting the requirements of the Act, and other registration statement filed documents necessary or incidental to a public offering, as shall be reasonably requested by the holder to permit the Holder to make a public distribution of his or her Registrable Securities. The Company under will use its reasonable efforts to qualify the Registrable Securities Act for sale in such states as the Holder of Registrable Securities shall reasonably request, provided that no such qualification will be required in any jurisdiction where, solely as a result thereof, the Company, would be subject to service of general process or to taxation or qualification as a foreign corporation doing business in such jurisdiction. The obligations of the Company hereunder with respect to the registration of Holder's Registrable Securities are expressly conditioned on the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing Holder's furnishing to the Company by such appropriate information concerning the Holders or underwriter expressly for use thereinHolder, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning Holder's Registrable Securities and the terms of the Securities Act and each officer, director, employee and agent Holder's offering of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by as the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use thereinreasonably request.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any the Holder any obligation to sell the Holder's his or her Registrable Securities.
(dc) Each The Holder, upon receipt of notice from the Company that an event has occurred which requires a Postpost-Effective Amendment effective amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of his or her Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(ed) If The Company shall not be required to include any Registrable Securities in a registration pursuant to this Agreement unless the Holders accept the terms of the underwriting as agreed upon between the Company fails and the underwriters selected by the Company. Furthermore, Holder shall cooperate with the Company in connection with the preparation of a Registration Statement, and for so long as the Company is obligated to file and keep effective the Registration Statement, shall provide to the Company, in writing, for use in the Registration Statement, all such information regarding Holders and his or its plan of distribution with respect to the Registrable Securities covered thereby as the Company from time to time may reasonably request to prepare the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement and prospectus covering the Registrable Securities remaining unsoldSecurities, subject to maintain the terms currency and provisions hereof.
(f) Each effectiveness thereof and otherwise to comply with all applicable requirements of law in connection therewith. Holder agrees to provide the Company with any information or undertakings reasonably requested by covenants that it will promptly notify the Company in order for the Company to include writing of any appropriate information concerning the Holder changes in the information set forth in a Registration Statement regarding such Holder or in order to promote compliance by the Company his or the Holder with the its plan of distribution of Registrable Securities Actcovered thereby.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. (a) The To the extent permitted by law, the Company shall will indemnify and hold harmless the Holders Investor, its agents, trustees and beneficiaries, partners or officers, directors and shareholders of the Investor, legal counsel and accountants for the Investor, and each underwriter, person who controls the Investor within the meaning of the Securities Act or the Exchange Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and or liabilities caused by (joint or several) to which they may become subject under the Securities Act, the Exchange Act or any state securities laws, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"): (i) any untrue statement or alleged untrue statement of a material fact contained in the such Registration Statement, including any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, preliminary prospectus or final prospectus contained therein or any prospectus included therein amendments or caused by any supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading, except insofar as or (iii) any Violation or alleged Violation by the Company of the Securities Act, the Exchange Act, any state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities laws; and the Company will reimburse the indemnified party under this Section 4(a), for any reasonable legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the indemnity described herein shall not apply any loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with written information furnished by the Investor (or any agent of the Investor) expressly for use in connection with such registration by the Investor; provided further, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of the Investor, from whom the person asserting any such losses, claims, damages or liabilities are caused by any such untrue statement purchased shares in the offering, if a copy of the prospectus (as then amended or omission based upon information furnished or required to be furnished in writing to supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by the Holders or underwriter expressly for use therein, which indemnification shall include each on behalf of such Investor to such person, if anyrequired by law so to have been delivered, who controls any Holder at or underwriter within prior to the meaning written confirmation of the Securities Act sale of the shares to such person, and each officer, director, employee and agent of each Holder and underwriter; provided, however, that if the indemnification in this Section 4(aprospectus (as so amended or supplemented) with respect would have cured the defect giving rise to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from liability.
(b) To the sale of Registrable Securities extent permitted by law, the Holder or underwriterInvestor will severally, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale jointly, indemnify and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify hold harmless the Company, each of its directors, each officer signing of its officers who has signed the Registration Statement and registration statement, each person, if any, who controls the Company within the meaning of the Securities ActAct or the Exchange Act and legal counsel and accountants for the Company, from and against any and all losses, claims, damages and or liabilities caused by to which any untrue statement of a material fact contained in the Registration Statementforegoing persons may become subject, any registration statement under the Securities Act, the Exchange Act or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleadingsecurities laws, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are caused by any untrue statement or omission based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information specifically furnished by the Investor expressly for use in connection with such registration which consists solely of the information specified in Section 4(d); and the Investor will reimburse any person intended to be indemnified pursuant to the foregoing, for any legal or other expenses reasonably incurred by such person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the indemnity obligation of the Investor hereunder shall not in any event exceed the net proceeds received by the Investor from the offering giving rise to such liability.
(c) Promptly after receipt by an indemnified party of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel reasonably satisfactory to each party; provided, however, that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the reasonable fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this paragraph. After notice from an indemnifying party to such indemnified party of its election to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of this paragraph for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (i) the indemnified party shall have employed counsel in accordance with the first sentence of this paragraph or (ii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent; provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the indemnified party, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the indemnified party with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made.
(d) The Investor confirms, and the Company acknowledges, that the information to appear in the table in the section entitled "Principal and Selling Shareholders" or equivalently named section in the Registration Statement under the headings "Name of Beneficial Owner," "Shares Beneficially Owned Prior to Offering - Number of Shares," "Maximum Number of Shares Offered in this Offering," or equivalently named headings in the Registration Statement and in the footnote related to such information pertaining to the Investor constitute the only information concerning the Investor that will be furnished in writing to the Company by or on behalf of the Holder or underwriter expressly Investor for use thereininclusion in the Registration Statement.
(be) If for any reason the indemnification provided for in the preceding section above is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage, liability damage or expense referred to thereinherein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunderhereunder, shall contribute to the amount paid or payable by the such indemnified party as a result of such loss, liability, claim, damage or liability expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party and on the indemnifying partyother in connection with the statements or omissions that resulted in such loss, liability, claim, damage or expense, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. No person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding any other provision of this Section, the Investor shall not be required to contribute any amount in excess of the amount by which the net proceeds received by such Investor from the sale of the shares of the Common Stock issued upon conversion of the Debenture pursuant to a Registration Statement exceeds the amount of damages which the Investor has otherwise been required to pay be reason of such untrue or alleged untrue statement or alleged omission. The obligation of the Investor obliged to make contribution pursuant to this Section shall be several and not joint.
(cf) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder Investor shall impose upon any Holder the Investor any obligation to sell the HolderInvestor's beneficially owned Registrable Securities.
(dg) Each HolderThe Investor, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder Investor receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(eh) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holderthe Investor, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(fi) Each Holder The Investor agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder Issuer in the Registration Statement or in order to promote compliance by the Company or the Holder Issuers with the Securities Act.
(gj) The With a view to making available to the Investor the benefits of Rule 144 and Rule 144A promulgated under the Securities Act and other rules and regulations of the Commission that may at any time permit the Investor to sell securities of the Company agrees to the public without registration, the Company covenants that it shall cause each of its directorsuse commercially reasonable efforts to (i) file in a timely manner all reports and other documents required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder and (ii) take such further action as the Investor may reasonably request (including providing any information necessary to comply with Rule 144 and Rule 144A, officers and shareholders owning ten percent (10%) or more if available with respect to resales of the Company's outstanding Common Stock Registrable Securities under the Securities Act), at all times, all to refrain the extent required from selling any shares time to time to enable the Investor to sell Registrable Securities without registration under the Securities Act within the limitation of the Company's Common Stock until the Registration Statement has been declared effective.
exemptions provided by (hx) Each Holder, on behalf of itself Rule 144 and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer Rule 144A (if available with respect to "short sell", contract to "short sell" or otherwise "short sell" any securities resales of the CompanyRegistrable Securities) under the Securities Act, includingas such rules may be amended from time to time, without limitation, shares of Common Stock that will be received as a result of or (y) any other rules or regulations now existing or hereafter adopted by the conversion of the Series A Stock or the exercise of the Warrants.Commission
Appears in 1 contract
Samples: Registration Rights Agreement (Environmental Solutions Worldwide Inc)
Additional Terms. (ai) The Company closing of any purchase of Call Securities from a Call Group pursuant to this Section 9.2 shall indemnify and hold harmless take place at the Holders and each underwriter, within the meaning principal office of the Securities ActPartnership as soon as reasonably practicable, who may purchase from or sell for any Holderbut not later than thirty (30) days, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement after the expiration of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act Call Period with respect to such Call Group as the registration party exercising the Call Option shall specify to the members of such Call Group in writing. At such closing, the members of the Registrable Call Group shall deliver, against payment for the Call Securities in accordance with the penultimate sentence of Section 9.2(e) hereof, to the Partnership certificates and/or other instruments representing, together with limited partnership interest or other appropriate powers duly endorsed with respect to, the Call Securities, any post-effective amendment free and clear of all claims, liens and encumbrances and, in the event that the Call Option was exercised by the LGP Group, the CVC Group, the Xxxxxx Group, the Juggernaut Group and the Centerview Group the Partnership shall issue in the name of each of the members of the LGP Group, the CVC Group and the Juggernaut Group certificates representing the Call Securities in proportion to such registration statementsthe relative ownership of Units of the members of the LGP Group, the CVC Group, the Xxxxxx Group, the Juggernaut Group and the Centerview Group as compared to one another. All of the foregoing deliveries will be deemed to be made simultaneously and none shall be deemed completed until all have been completed.
(ii) Notwithstanding anything set forth in this Section 9.2 to the contrary, prior to the exercise by the Partnership of its Call Option to purchase Call Securities pursuant to this Section 9.2, one or more prospective or existing employees of the Partnership or any prospectus included therein or caused by any omission to state therein a material fact required to Subsidiary may be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company designated by the Holders or underwriter expressly for use thereinGeneral Partner (a “Designated Employee”) who shall have the right, which indemnification shall include each personbut not the obligation, if anyto exercise the Call Option and to acquire, who controls any Holder or underwriter within the meaning in lieu of the Partnership, some or all (as determined by the General Partner) of the Call Securities Act that the Partnership is entitled to purchase from the Call Group hereunder, and each officer, director, employee otherwise on the same terms and agent of each Holder and underwriter; conditions as set forth in Section 9.2(d) (provided, however, that in all events, and notwithstanding any provisions of this Agreement to the indemnification contrary, the purchase price payable by any such Designated Employee shall be payable by such Designated Employee in cash on the date of exercise of such Call Option). Concurrently with any such purchase of Call Securities by any such Designated Employee, if such Designated Employee is not at that time a Management Partner, such Designated Employee shall execute a counterpart of this Agreement whereupon such Designated Employee shall be deemed a “Management Partner” and shall have the same rights and be bound by the same obligations as the other Management Partners hereunder. Payment in cash under this Section 9.2(e) shall include payment made by a certified check or checks payable to the respective members of the Call Group, in an amount equal to the purchase price for such Call Securities under Section 9.2(a) hereof. The General Partner may exercise its rights under this Section 9.2(e)(ii) whether or not the Partnership exercises its Call Option hereunder.
(iii) If neither the Partnership nor any Designated Employee nor the LGP Group, the CVC Group, the Xxxxxx Group, the Juggernaut Group and the Centerview Group elects to exercise the Call Option and deliver a Call Notice within the Call Period, then the Call Option provided for in this Section 4(a) with respect 9.2 shall terminate, but the Management Partner and his Call Group shall continue to any prospectus shall not inure hold such Call Securities pursuant to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning all of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason other provisions of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleadingAgreement, insofar as such lossesincluding Sections 9.1, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein9.5 and 9.7.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Samples: Limited Partnership Agreement (Advantage Solutions Inc.)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the indemnified party and the indemnifying party, but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Samples: Registration Rights Agreement (Mediabus Networks Inc)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) The Holder shall indemnify and hold harmless the Company, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any material untrue statement or material omission based upon information furnished in writing to the Company by the Holder expressly for use therein.
(c) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(cd) Promptly after receipt by an indemnified party under this Section 4 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 4, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential conflict of interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of liability to the indemnified party under this Section 4 only to the extent the indemnifying party is prejudiced as a result thereof.
(e) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's ’s Registrable Securities.
(df) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(eg) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best commercially reasonable efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof, so that the registration of such unsold Registered Securities is maintained for a number of days beyond the Expiration Date equal to the number of days that the Holder is unable to sell pursuant to Section 4(f) above.
(fh) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(gi) The Company agrees that it shall cause each of Each Holder, by its directors, officers and shareholders owning ten percent (10%) or more acceptance of the Company's outstanding Common Stock Registrable Securities, agrees to refrain from selling any shares cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of the Company's Common Stock until the a Registration Statement has been declared effectivehereunder.
(hj) Each Holder, on behalf of itself and itself, its affiliates, its successors and assigns and any other direct or indirect transferee holding any of the Warrants, the Series I Stock or the Registrable Securities, hereby covenants and agrees not to, directly or indirectly, offer to "“short sell"”, contract to "“short sell" ” or otherwise "“short sell" ” or encourage others to “short sell” any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A I Stock or the exercise of the Warrants. For purposes of this Agreement, “short selling” shall include any sale, any trade in any option or other derivative security, any hedging transaction relating to the securities of the Company or any transaction intended to affect the price of the Company’s common stock.
(k) If requested in writing by the Company and the managing underwriter of an underwritten registered public offering by the Company of its Common Stock, the Holders shall agree not to sell or otherwise transfer or dispose of any Common Stock of the Company held by such Holders (other than those included in the registration statement) for a period not to exceed 90 days following the effective date of a registration statement of the Company filed under the Securities Act, provided that all officers and directors of the Company enter into similar agreements identical in terms to that of the Holders.
Appears in 1 contract
Samples: Registration Rights Agreement (Spescom Software Inc)
Additional Terms. The additional terms and conditions as per the contractual understanding between the Parties are recorded hereunder. However, it is expressly clarified that such additional terms and conditions are not in derogation of or inconsistent with the terms and conditions set out above.
34.1 Subject to Promoter not being in material default of its obligations under this Agreement, the Allottee shall not in any manner cause any objection obstruction interference or interruption at any time hereafter in the construction or completion of construction of or in the Project and/or Complex or other parts of the said Larger Land (anotwithstanding the delivery of possession of the said Apartment to the Allottees in the meantime and notwithstanding there being temporary inconvenience in the use and enjoyment thereof by the Allottee) nor shall at any time hereafter do or omit to be done anything whereby the construction or development of the buildings or the said Larger Land or the sale or transfer of the other units/apartments and areas in the Wings/buildings is in any way interrupted or hindered or impeded with nor shall in any way commit breach of any of the terms and conditions herein contained and if due to any neglect or default on the part of the Allottee or because of any act or deed or omission on the part of the Allottee, the Promoter is restrained from construction of the Wings/buildings and/or transferring and disposing of the other units and areas therein then and in that event without prejudice to such other rights the Promoter may have, the Allottee shall be liable to compensate and also indemnify the Promoter for all losses damages costs claims demands actions and proceedings that may be suffered or incurred by the Promoter.
34.2 It is expressly clarified herein in respect of the residential apartments, parking spaces and other spaces, properties and other rights comprised in the Project and/or the Complex and/or the Phase-1 and/or Commercial Zone, as applicable, which are not intended to be transferred to the Purchaser as aforesaid, the Promoter shall be entitled to use, utilise, transfer, alienate, part with possession, deal with or dispose of the same in any manner whatsoever on such terms and conditions as may be thought fit and proper by them in its absolute discretion, without any reference or objection of to the Allottee. The Company Purchaser hereby consents to the same and undertakes not to raise any claim or create or cause to be created for any reason, directly or indirectly, any obstruction or hindrance whatsoever regarding the same.
34.3 The Allottee shall within 3 (three) months of completion of sale that is from the date of registration of the Deed of Conveyance, apply for and obtain at his/her/its own costs separate assessment and mutation of the Apartment in the records of the concerned Municipality and the BL&LRO and shall keep the Owners and the Promoter indemnified against any loss, claims and/or demand that may be incurred by or may arise against the Owners and/or the Promoter due to non-fulfilment and/or non-observance of this obligation by the Allottee;
34.4 The rights of the Allottee in respect of the said Unit under this Agreement can be exercised only upon payment of all moneys which have fallen due towards consideration, deposits, maintenance and other charges, contributions, and/or interest, if any.
34.5 In case of any amount (including maintenance charges) being due and payable by the Allottee to the Promoter and/or the Association, the Allottee shall not be entitled to let out, transfer or part with possession of the said Unit till the time the same are fully paid and No Dues Certificate is obtained from the Promoter and/or the Association, as applicable.
34.6 The Promoter shall be obliged to deliver possession of the said Unit subject To the Allottee making payment of the entire balance consideration and all other amounts and deposits payable by the Allottee to the Promoter hereunder AND fulfilling all his/her/its other covenants/obligations herein.
34.7 The Promoter shall not be liable to execute or cause to be executed any Conveyance Deed or other instruments in favour of the Allottee until such time the Allottee makes payment of all amounts (including maintenance charges) agreed and required to be paid hereunder by the Allottee AND the Allottee has fully performed all the terms conditions and covenants of this Agreement and on the part of the Allottee to be observed and performed until then.
34.8 All liabilities owing to non-registration of the Conveyance Deed for the reasons solely attributable to the Allottee shall be to the account of the Allottee and the Allottee shall indemnify and hold keep the Promoter saved harmless the Holders and each underwriter, within the meaning indemnified of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against all losses damages costs claims demands suffered or incurred to likely to be suffered or incurred by the Promoter.
34.9 Notwithstanding anything elsewhere to the contrary herein contained it is expressly agreed and understood that the Promoter shall be exclusively entitled to and shall have the exclusive right to install its own glow sign/signage without any fee or charge and for the purposes of the Project also to install and/or permit any person to install towers, V-Sat, Dish or other Antennas or installations of any nature on the roofs for the time being of the Wings or any part thereof on such terms and conditions as the Promoter may in its sole discretion think fit and proper without any objection or hindrance from the Allottee, and the Allottee hereby consents to the same.
34.10 The Allottee shall have no connection whatsoever with the purchasers/buyers of the other Units and there shall be no privity of contract or any agreement arrangement or obligation or interest as amongst the Allottee and the other Allottees (either express or implied) and the Allottee shall be responsible to the Promoter for fulfilment of the Allottee’s obligations and the Allottee’s obligations and the Promoter’s rights shall in no way be affected or prejudiced thereby.
34.11 The properties and rights hereby agreed to be sold to the Allotteeis and shall be one lot and shall not be partitioned or dismembered in part or parts in any manner save with the consent of the Promoter in writing. It is further agreed and clarified that any transfer of the said Unit by the Allottee shall not be in any manner inconsistent herewith and the covenants herein contained.
34.12 In respect of clause 7.1, 7.5, 7.6 and 9.2 of the Agreement, it is clarified that all amounts collected as GST and deposited with the appropriate authorities concerned shall not be returned by the Promoter and the Allottee shall be free to approach the authorities concerned for refund of such GST.
34.13 In respect of clause 7.1 of the Agreement, it is clarified that, subject to the Act, the Force Majeure events may include epidemic, pandemic, health emergency, Governmental actions including lockdowns (including partial), curfews or any other events beyond the control of the Promoter including but not limited to any change in law, non-availability or irregular availability of essential inputs, labour, water supply or sewerage disposal connection or electric power, or slow down or strike by contractor, construction agency employed/to be employed, change in any Governmental/statutory notifications, any order/stipulation of the courts/statutory or local authorities, any prohibition order from any court of law or statutory authorities affecting the regular development of the Project.
34.14 In respect of clause 7.5 of the Agreement, it is clarified that where the Allottee proposes to cancel/withdraw from the Project without any fault of the Promoter, then subject to terms mentioned below, the Allottee shall serve a 45 (forty five) days’ notice in writing on the Promoter and on expiry of the said period the allotment shall stand cancelled and the Promoter herein is entitled to forfeit an amount equal to the sum total of the booking amount paid for the allotment along with all interest liabilities of the Allottee in terms of Sec. 19 of the Act accrued till the date of such cancellation (“Cancellation Charges”) and the applicable GST payable on such Cancellation Charges. The balance amount of money paid by the Allottee shall be returned by the Promoter to the Allottee within 45 (forty-five) days of such cancellation.
34.15 In respect of clause 7.5 and 9.3 above of this Agreement:
a. The Allottee agrees that where the Allottee proposes to cancel/withdraw from the Project without any fault of the Promoter, the Promoter shall make such refund without any interest or compensation and all lossescharges and expenses that may be incurred by the Promoter in making such refund shall be borne by the Allottee. However, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed event the Allottee is required by the Company under Promoter to execute and present for registration a Deed of Cancellation of allotment, the Securities Act with respect Allottee hereby agrees to do so without any claim charge and demand and only on registration of such Deed of Cancellation, the Promoter shall refund to the Allottee amounts as mentioned in Clause 7.5 and 9.3 above.
b. The Allottee further understands and agrees to pay the necessary Stamp Duty, registration fees, all other charges and expenses if any, that may be payable for registration of the Registrable Securities, any post-effective amendment Deed of Cancellation.
c. In the event the Allottee is unable to such registration statements, or any prospectus included therein or caused by any omission execute the said Deed of Cancellation; the Promoter shall have the right to state therein a material fact required to be stated therein or necessary to make unilaterally execute and/or register the statements therein said Deed of Cancellation and the Allottee shall not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing object to the Company same and the Allottee shall cease to have any right title interest whatsoever in the Apartment or Project on and from the date of expiry of the period mentioned in the notice of cancellation or termination issued by the Holders Promoter or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other personAllottee, as the case may be.
34.16 In respect of clause 10 of the Agreement, it is clarified that the conveyance deed shall be drafted by the solicitors/advocates of the Promoter.
34.17 The Allottee acknowledges and agrees that the Allottee shall have the right of use of the Sampurna Shared Common Areas to be used and enjoyed in common with the allottees of the Residential Zone and Commercial Zone as mentioned in Part C of the Schedule-F hereto.
34.18 In respect of clause 18 of the Agreement, it is clarified that for obtaining financial assistance and/or loans from Banks, Financial Institutions, NBFCs and other lenders, the Promoter may already have created mortgage and/or charge on the said Larger Land and/or any part thereof and shall be at liberty to create further mortgages and/or charges in respect of the said Larger Land or any part thereof, and the Allottee hereby consents to the same. Provided however that at the same time indemnify of execution of the CompanyDeed of Conveyance, its directors, each officer signing the Registration Statement and each personPromoter assures to have the said Unit released from any such mortgage and/or charge, if any, who controls with intent that the Company Allottee, subject to his making payment of all the amounts payable as per the Payment Plan annexed hereto and complying with his other obligations herein, will be acquiring title to the said Unit free of all such mortgages and charges created by the Promoter.
34.19 In respect of clause 12 of this Agreement, it is expressly agreed and understood that in case the Allottee, without first notifying the Promoter and without giving to the Promoter the opportunity to inspect assess and determine the nature of such defect (which inspection Promoter shall be required to complete within the meaning 30 working days of receipt of the Securities Actnotice from the Allottee), from alters the state and against any and all lossescondition of such defect, claims, damages and liabilities caused by any untrue statement then the Promoter shall be relieved of a material fact its obligations contained in clause 12 of this Agreement and the Registration StatementAllottee shall not be entitled to any cost or compensation in respect thereof. Further, the Promoter shall not be liable to rectify any registration statement defect occurring under the following circumstances:
a. If there are changes, modifications or alteration in plumbing pipes and fittings and fixtures or change of wall or floor tiles (wherever given) after the Allottee taking over possession of the Apartment, the Promoter will not take any responsibility of waterproofing, cracks or any prospectus defect in plumbing pipes and fittings and fixtures that have developed directly or indirectly due to such changes;
b. If there are changes, modifications or alteration in electrical lines and wirings after said possession unto the Allottee, the Promoter will not take any responsibility of any defect in electrical lines and wirings that have developed directly or indirectly due to such changes, modifications or alterations;
c. If there are changes, modifications or alterations in doors, or other related items excluding those which the Allottee is not permitted to change then the Promoter will not take responsibility of door locks or door alignment or any other related defects arising directly or indirectly out of such changes, modifications or alterations;
d. If the Allottee after taking actual physical possession of the Apartment, executes interior decoration work including any addition and/or alteration in the layout of the internal walls of the Apartment by making any changes in the Apartment, then any defect like damp, hair line cracks, breakage in floor tiles or other defects arising as a direct or indirect consequence of such alterations or changes will not be entertained by the Promoter;
e. If the materials and fittings and fixtures provided by the Promoter are not being maintained by the Allottee or his/her agents in the manner in which same is required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make maintained and if the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company materials and fittings and fixtures provided by the Holder or underwriter expressly for use thereinPromoter are not available in the market.
(b) If for any reason f. Any electrical fittings and/or gadgets or appliances or other fittings and fixtures provided by the indemnification provided for Promoter in the preceding section common areas and/or in the Apartment going out of order or malfunctioning due to voltage fluctuations or other reasons not under the control of the Promoter and not amounting to poor workmanship or manufacture thereof.
g. If the Architect certifies that such defects are not manufacturing defects or due to poor workmanship or poor quality and any normal wear and tear.
h. Notwithstanding anything hereinbefore contained it is held by a court hereby expressly agreed and understood that in case the Allottee, without first notifying the Promoter and without giving the Promoter the reasonable opportunity to inspect, assess and determine the nature of competent jurisdiction purported defect in the Apartment, alters the state and condition of the area of the purported defect, then the Promoter shall be relieved of its obligations contained in clause 12 hereinabove.
34.20 The Promoter shall assist the Allottee to be unavailable to an indemnified party obtain electricity meters with respect to any loss, claim, damage, liability or expense referred his/her/its Apartment from electricity supply agency. The Allottee shall be required to therein, then the indemnifying party, fill in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then forms and pay the Company shall, promptly upon the request of any Holder, use best efforts applicable security deposit and charges to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.electricity supply
Appears in 1 contract
Samples: Sale Agreement
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best commercially reasonable efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. (a) The To the extent permitted by law, the Company shall will indemnify and hold harmless the Holders Investor, its agents, trustees and beneficiaries, partners, officers, directors, shareholders and members of the Investor, legal counsel and accountants for the Investor, and each underwriter, person who controls the Investor within the meaning of the Securities Act or the Exchange Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and or liabilities caused by (joint or several) to which they may become subject under the Securities Act, the Exchange Act or any state securities laws, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "VIOLATION"): (i) any untrue statement or alleged untrue statement of a material fact contained in the such Registration Statement, including any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, preliminary prospectus or final prospectus contained therein or any prospectus included therein amendments or caused by any supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading, except insofar as or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities laws; and the Company will reimburse the indemnified party under this Section 4(a), for any reasonable legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the indemnity described herein shall not apply any loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by the Investor; PROVIDED FURTHER, HOWEVER, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of the Investor, from whom the person asserting any such losses, claims, damages or liabilities are caused by any such untrue statement purchased shares in the offering, if a copy of the prospectus (as then amended or omission based upon information furnished or required to be furnished in writing to supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by the Holders or underwriter expressly for use therein, which indemnification shall include each on behalf of such Investor to such person, if anyrequired by law so to have been delivered, who controls any Holder at or underwriter within prior to the meaning written confirmation of the Securities Act sale of the shares to such person, and each officer, director, employee and agent of each Holder and underwriter; provided, however, that if the indemnification in this Section 4(aprospectus (as so amended or supplemented) with respect would have cured the defect giving rise to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from liability.
(b) To the sale of Registrable Securities extent permitted by law, the Holder or underwriterInvestor will severally, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale jointly, indemnify and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify hold harmless the Company, each of its directors, each officer signing of its officers who has signed the Registration Statement and registration statement, each person, if any, who controls the Company within the meaning of the Securities ActAct or the Exchange Act and legal counsel and accountants for the Company, from and against any and all losses, claims, damages and or liabilities caused by to which any untrue statement of a material fact contained in the Registration Statementforegoing persons may become subject, any registration statement under the Securities Act, the Exchange Act or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleadingsecurities laws, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are caused by any untrue statement or omission based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information specifically furnished by the Investor expressly for use in connection with such registration which consists solely of the information specified in Section 4(d); and the Investor will reimburse any person intended to be indemnified pursuant to the foregoing, for any legal or other expenses reasonably incurred by such person in connection with investigating or defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the indemnity obligation of the Investor hereunder shall not in any event exceed the net proceeds received by the Investor from the offering giving rise to such liability.
(c) Promptly after receipt by an indemnified party of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel reasonably satisfactory to each party; PROVIDED, HOWEVER, that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the reasonable fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this paragraph. After notice from an indemnifying party to such indemnified party of its election to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of this paragraph for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (i) the indemnified party shall have employed counsel in accordance with the first sentence of this paragraph or (ii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent; PROVIDED, HOWEVER, that the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the indemnified party, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the indemnified party with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made.
(d) The Investor confirms, and the Company acknowledges, that the information to appear in the table in the section entitled "Principal and Selling Shareholders" or equivalently named section in the Registration Statement under the headings "Name of Beneficial Owner," "Shares Beneficially Owned Prior to Offering - Number of Shares," "Maximum Number of Shares Offered in this Offering," or equivalently named headings in the Registration Statement and in the footnote related to such information pertaining to the Investor constitute the only information concerning the Investor that will be furnished in writing to the Company by or on behalf of the Holder or underwriter expressly Investor for use thereininclusion in the Registration Statement.
(be) If for any reason the indemnification provided for in the preceding section above is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage, liability damage or expense referred to thereinherein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunderhereunder, shall contribute to the amount paid or payable by the such indemnified party as a result of such loss, liability, claim, damage or liability expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party and on the indemnifying partyother in connection with the statements or omissions that resulted in such loss, liability, claim, damage or expense, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. No person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding any other provision of this Section, the Investor shall not be required to contribute any amount in excess of the amount by which the net proceeds received by such Investor from the sale of the shares of the Common Stock or sale of the shares of Common Stock issued upon exercise of the Warrants, in each case pursuant to a Registration Statement, exceeds the amount of damages which the Investor has otherwise been required to pay by reason of such untrue or alleged untrue statement or alleged omission. The obligation of the Investor obliged to make contribution pursuant to this Section shall be several and not joint.
(cf) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder Investor shall impose upon any Holder the Investor any obligation to sell the HolderInvestor's beneficially owned Registrable Securities.
(dg) Each HolderThe Investor, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder Investor receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(eh) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holderthe Investor, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(fi) Each Holder The Investor agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder Issuer in the Registration Statement or in order to promote compliance by the Company or the Holder Issuers with the Securities Act.
(gj) The With a view to making available to the Investor the benefits of Rule 144 and Rule 144A promulgated under the Securities Act and other rules and regulations of the Commission that may at any time permit the Investor to sell securities of the Company agrees to the public without registration, the Company covenants that it shall cause each of its directorsuse commercially reasonable efforts to (i) file in a timely manner all reports and other documents required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder and (ii) take such further action as the Investor may reasonably request (including providing any information necessary to comply with Rule 144 and Rule 144A, officers and shareholders owning ten percent (10%) or more if available with respect to resales of the Company's outstanding Common Stock Registrable Securities under the Securities Act), at all times, all to refrain the extent required from selling any shares time to time to enable the Investor to sell Registrable Securities without registration under the Securities Act within the limitation of the Company's Common Stock until the Registration Statement has been declared effective.
exemptions provided by (hx) Each Holder, on behalf of itself Rule 144 and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer Rule 144A (if available with respect to "short sell", contract to "short sell" or otherwise "short sell" any securities resales of the CompanyRegistrable Securities) under the Securities Act, includingas such rules may be amended from time to time, without limitation, shares of Common Stock that will be received as a result of or (y) any other rules or regulations now existing or hereafter adopted by the conversion of the Series A Stock or the exercise of the Warrants.Commission
Appears in 1 contract
Samples: Registration Rights Agreement (Environmental Solutions Worldwide Inc)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders Holder and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any the Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statementeither registration statement filed pursuant to Article 2 of this Agreement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders Holder or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any either the Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each the Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any the Holder or underwriter (or to the benefit of any person controlling any the Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such the Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale sale; and provided further, that the Company shall not be obligated to so indemnify any the Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement applicable registration statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statementapplicable registration statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Samples: Registration Rights Agreement (Digital Solutions Inc)
Additional Terms. (a1) The Company shall indemnify and hold harmless the Holders Holder and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any the Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders Holder or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any either the Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each the Holder and underwriter; provided, however, that the indemnification in this Section 4(a5(a) with respect to any prospectus shall not inure more to the benefit of any the Holder or underwriter (or to the benefit of any person controlling any the Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such the Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any the Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b2) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the indemnified party and the indemnifying party, but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c3) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any the Holder any obligation to sell the Holder's Registrable Securities.
(d4) Each The Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e5) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holderthe Holders of at least a majority of the unsold Registrable Securities, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f6) Each The Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder Holders with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliatesaffiliates and the permitted assignee of any Conversion Shares, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the WarrantsB Stock.
Appears in 1 contract
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders Holder and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders Holder or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders shareholder owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each HolderHolder agrees with the Company that such Holder will not short sell the Company's shares of Common Stock, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly either before or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities after the effective date of the CompanyRegistration Statement, including, without limitation, and the Holder agree that they will not collectively sell on any given day a number of shares of Common Stock that will be received as a result in excess of fifteen percent (15%) of the conversion Average Dollar Daily Trading Volume for the prior fifty (50) trading days as reported by BigCharts.com or an other nationally recognized reporting service. Xxxx xxxxxxxx shall terminate concurrently with the termination of the Series A Stock or Company's obligation to maintain the exercise effectiveness of the WarrantsRegistration Statement pursuant to Section 2(a).
Appears in 1 contract
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's ’s outstanding Common Stock to refrain from selling any shares of the Company's ’s Common Stock except under pre-existing filed plans until the Registration Statement has been declared effective.
(h) Each Commencing on the date hereof and continuing until such time as the Series B Stock and Warrants are no longer outstanding each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, to offer to "short sell", or contract to "short sell" or otherwise "short sell" any the securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of Company against the conversion of the unconverted Series A B Stock or the exercise of un-exercised Warrants. In the Warrantsevent that the Registration Statement is not deemed effective within 5 months after the Closing Date or if at anytime after initial effectiveness the Registration Statement is ineffective, then this covenant shall toll until such time as the Registration Statement is effective.
(i) Except as set forth on Exhibit “A” attached hereto and incorporated herein by reference, other than the Registrable Securities, the Company shall not include any other securities for registration in the Registration Statement or file any other registration statement unless the Registration Statement is effective.
Appears in 1 contract
Additional Terms. In addition to the other terms and ---------------- conditions of this Agreement, Buyer and Seller covenant and agree as follows:
(a) The Company At or before the Closing Date, Seller shall indemnify have executed and hold harmless the Holders delivered to Buyer such UCC financing statements, as are prepared by Seller for filing, to assign to Buyer Seller's interest and each underwriter, within the meaning to give notice of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained Buyer's interest in the Registration Statement, any other registration statement Account Assets and/or Account Receivables transferred by Seller. Such financing statements will be filed by the Company under the Securities Act with respect to the registration of the Registrable SecuritiesSeller, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify appropriate place or places for the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required financing statements to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as for such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use thereinpurpose.
(b) If It is hereby agreed that the Buyer does not assume or incur and shall not in any manner become liable for any reason debt, obligation, or liability of the indemnification Seller, except as provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability herein or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerationstransactions contemplated by this Agreement.
(c) Neither All books and records relating to the filing Accounts and the related Account Receivables shall be maintained and held by Seller for a period of seven (7) years and shall be delivered by Seller to Buyer upon Buyer's request within fifteen (15) Business Days after the date of such request in accordance with the Buyer's instructions. Such books and records shall include, on an Account by Account basis (from Seller's microfilm records and/or master file): (i) the application and credit agreement, (ii) the Sales Slip or invoice; (iii) the Account history; (iv) any collection history and (v) any other records maintained by Seller in its ordinary course of business. In the event that Seller does not have or does not deliver to Buyer a Registration Statement by requested record on an Account and Buyer suffers a loss that results from Seller's failure to retain or deliver such record, then the Company Parties agree that Buyer may treat the associated sales slip or sales transaction as a "Chargeback" pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable SecuritiesMerchant Agreement.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment Seller and Buyer shall cooperate fully with each other in connection with any examination conducted by any tax or regulatory authority with respect to the Registration Statement or a supplement Accounts and related Account Receivables subsequent to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such noticeConversion Date.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, Seller and Buyer will use best all reasonable efforts to update take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable to carry out all of their respective obligations under this Agreement and to consummate and make effective the Registration Statement or file a new registration statement covering transactions contemplated by this Agreement, including but not limited to (i) taking such further action as may be necessary and appropriate effectively to vest in Buyer the Registrable Securities remaining unsold, subject full legal and equitable title to the terms Account Assets and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.Account Receivables;
Appears in 1 contract
Samples: Purchase and Sale Agreement (Seaman Furniture Co Inc)
Additional Terms. (a) The Company shall indemnify Tenant specifically acknowledges and hold harmless agrees that Landlord will sell and Tenant will purchase the Holders Premises on an "as is with all faults" basis, subject to all exceptions to and each underwriterdefects of title, within whether or not of record (but subject also to Tenant's rights and Landlord's obligations as set forth below), and that Tenant will not rely on nor will Landlord or any of its Affiliates be deemed to have made, any representations or warranties of any kind, express or implied including, without limitation, those in connection with the meaning physical condition of the Securities ActPremises (including, who may purchase from or sell for any Holderwithout limitation, any Registrable Securitiesmatters involving Hazardous Substances or compliance with any Laws), from or the nature of title to the Premises, or the advisability of Tenant's purchase of the Premises). However, until and against unless Tenant otherwise agrees in writing or defaults Landlord will not voluntarily execute any and all lossesdocuments affecting title that materially adversely affect Tenant's operations or that render title to the Premises unmarketable (but easements, claimsdedications or other documents for utilities or curb cuts, damages and liabilities caused by or as otherwise may be needed to comply with applicable Laws or to enable Landlord to meet its obligations under this Lease or in connection with the construction of any untrue statement new building(s) or the enlargement of the Building per this Lease, will not be deemed to be violations of this restriction). If this restriction is violated after the exercise of a material fact contained Purchase Option, Tenant shall have the right to terminate that Purchase Option without liability and receive the Deposit back. Notwithstanding the foregoing, even if Tenant has validly exercised a Purchase Option, Tenant shall have the right to terminate that Purchase Option without liability (except for Landlord's out-of-pocket costs) and shall not be required to close the purchase if, after the exercise of the Purchase Option but prior to closing, there is a casualty that causes damage of the type and to the extent described in Section 16.2(b)(x) such that Tenant otherwise would have the right to terminate this Lease, and in the Registration Statement, any other registration statement filed reasonable judgement of a qualified independent contractor hired by Landlord it will take more than two (2) years from the Company under the Securities Act with respect to the registration date of the Registrable Securitiesdamage to restore access or restore or replace the destroyed parking spaces or substantially complete the repairs that Landlord would have been required to make, any post-effective amendment and Tenant notifies Landlord of its intent to such registration statementsterminate within thirty (30) days after receiving the notice from Landlord's contractor, which shall be provided as soon as reasonably practicable after the damage occurs. If these circumstances occur, the closing date shall be extended as necessary to accommodate this thirty (30)-day period. If Tenant does not so terminate, or any prospectus included therein or caused by any omission if Tenant is not permitted to state therein so terminate as a material fact required to be stated therein or necessary to make the statements therein not misleadingresult of a casualty, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect closing Landlord will assign to any prospectus shall not inure Tenant all casualty insurance proceeds otherwise payable to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) Landlord on account of any such loss, claim, the damage or liability arising from and all rights and claims in connection therewith (other than those which Landlord was entitled to receive for the sale of Registrable Securities by period and/or for the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company work and services performed prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter closing). Notwithstanding anything to the purchaser contrary, if Landlord is in the process of repairing or rebuilding casualty damage and Tenant subsequently validly exercises a Purchase Option: Landlord will continue the process of repairing or rebuilding as otherwise required in this Lease until the closing date under the Purchase Option; Tenant will be deemed to have waived its right to terminate this Lease under Article 16, and its right to terminate the Purchase Option in connection with that casualty or any repairs or rebuilding in connection therewith; Landlord will assign to Tenant as of the closing all casualty insurance proceeds otherwise payable to Landlord on account of the damage and all rights and claims in connection therewith (other than those which Landlord was entitled to receive for the period and/or for the work and services performed prior to such sale the closing), and provided further, that Landlord shall assign to Tenant and Tenant shall assume all rights and Liabilities of Landlord under the Company contracts entered into in connection with the repair or rebuilding to the extent assignable and Tenant shall not indemnify Landlord and its Affiliates for and hold them harmless from all Liabilities in connection therewith; and Landlord shall be obligated to so indemnify any Holder continue to repair or any such underwriter or other person referred rebuild after the closing date only if and to above unless the Holder or underwriter or other person, as the case may be, shall extent actually agreed to by Landlord and Tenant in good faith and in writing at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use thereintime.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault As of the indemnified party closing, Tenant and the indemnifying partyits Affiliates will be deemed to have released and discharged Landlord and its Affiliates from, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant and to this Agreement nor the making have waived, all Liabilities of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holdertype, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement known or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Companyunknown, including, without limitation, shares Liabilities under or in connection with this Lease and/or the Premises (except as set forth in the last sentence of Common Stock Subsection (c) below). As a condition to closing, Landlord may require that will be received Landlord's Mortgagees release Landlord and its Affiliates from Liabilities under or in connection with any Superior Leases or Mortgages. From and after the closing, Tenant shall indemnify, defend and hold Landlord free and harmless from all Liabilities under or in connection with this Lease and/or the Premises and/or the purchase thereof (except as set forth in the last sentence of Subsection (c) below).
(c) Time is of the essence in this Addendum. If Tenant defaults hereunder after the closing under a Purchase Option or Tenant or Landlord defaults under any of the documents delivered by it in connection therewith, in addition to any rights and remedies available to each of the respective parties, each party shall have all rights and remedies at law and in equity, all of which are cumulative and not exclusive, including, without limitation, the right to require specific performance. The exercise of a Purchase Option or any closing as a result thereof shall not relieve Tenant or Landlord from any Liabilities for any defaults under this Lease, nor will they extinguish Liabilities for any indemnities or other obligations that survive pursuant to the terms of the conversion rest of this Lease or this Addendum.
(d) Notwithstanding anything to the contrary, as of the Series A Stock date of the first occurrence of any of the following, at Landlord's election all of Tenant's rights and Landlord's obligations under or in connection with this Addendum will lapse and become null and void upon:
(i) The exercise of Tenant's Cancellation Option or the expiration of the Lease term (as validly extended) or termination of this Lease in accordance with its terms prior to the exercise of a Purchase Option or any closing thereunder; or
(ii) The bona fide purchase or other acquisition of all or substantially all of the WarrantsPremises by any person or entity (including, without limitation, Tenant or its Affiliates) other than by any of Landlord's Control Affiliates prior to the exercise of a Purchase Option and other than any sale or conveyance which is prohibited under this Lease.
(e) Notwithstanding anything to the contrary, Tenant's rights and Landlord's obligations under or in connection with this Addendum will not be binding on and will not affect or otherwise apply in any way to Landlord's Mortgagees or their successors, assigns and purchasers, or their respective Affiliates, whether or not they take title to or acquire all or substantially all of the Premises.
Appears in 1 contract
Samples: Lease (Polycom Inc)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders Holder and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any the Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter Holder expressly for use therein, which indemnification shall include each person, if any, who controls any either the Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriterthe Holder; provided, however, that the indemnification in this Section 4(a5(a) with respect to any prospectus shall not inure to the benefit of any the Holder or underwriter (or to the benefit of any person controlling any Holder or underwriterthe Holder) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriterHolder, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such the Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any the Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the indemnified party and the indemnifying party, but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any the Holder any obligation to sell the Holder's Registrable Securities.
(d) Each The Holder, upon receipt of notice from the Company that an event has occurred which requires a Postpost-Effective Amendment effective amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holderthe Holders of at least a majority of the unsold Registrable Securities, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each The Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder Holders with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. (a) The To the extent permitted by law, the Company shall will indemnify and hold harmless the Holders Investor, its agents, trustees and beneficiaries, partners or officers, directors, partners, members and shareholders of the Investor, legal counsel and accountants for the Investor, and each underwriter, person who controls the Investor within the meaning of the Securities Act or the Exchange Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and or liabilities caused by (joint or several) to which they may become subject under the Securities Act, the Exchange Act or any state securities laws, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"): (i) any untrue statement or alleged untrue statement of a material fact contained in the such Registration Statement, including any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, preliminary prospectus or final prospectus contained therein or any prospectus included therein amendments or caused by any supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused (iii) any violation or alleged violation by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act, the Exchange Act, any state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities laws; and each officerthe Company will reimburse the indemnified party under this Section 5(a), directorfor any reasonable legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, employee and agent of each Holder and underwriterclaim, damage, liability or action; provided, however, that the indemnification in this Section 4(a) with respect indemnity described herein shall not apply to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage damage, liability or liability arising from action to the sale extent that it arises out of Registrable Securities or is based upon a Violation that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by the Holder or underwriterInvestor.
(b) To the extent permitted by law, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale Investor will severally, and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale jointly, indemnify and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify hold harmless the Company, each of its directors, each officer signing of its officers who has signed the Registration Statement and registration statement, each person, if any, who controls the Company within the meaning of the Securities ActAct or the Exchange Act and legal counsel and accountants for the Company, from and against any and all losses, claims, damages and or liabilities caused by to which any untrue statement of a material fact contained in the Registration Statementforegoing persons may become subject, any registration statement under the Securities Act, the Exchange Act or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleadingsecurities laws, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are caused by any untrue statement or omission based upon information furnished any Violation, in writing each case to the Company extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information specifically furnished by the Holder or underwriter Investor expressly for use thereininclusion in such Registration Statement; and the Investor will reimburse any person intended to be indemnified pursuant to the foregoing, for any legal or other expenses reasonably incurred by such person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the indemnity obligation of the Investor hereunder shall not in any event exceed the net proceeds received by the Investor from the offering giving rise to such liability.
(bc) Promptly after receipt by an indemnified party of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel reasonably satisfactory to each party; provided, however, that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the reasonable fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this paragraph. After notice from an indemnifying party to such indemnified party of its election to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of this paragraph for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (i) the indemnified party shall have employed counsel in accordance with the first sentence of this paragraph or (ii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent; provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the indemnified party, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the indemnified party with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made.
(d) If for any reason the indemnification provided for in the preceding section above is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage, liability damage or expense referred to thereinherein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunderhereunder, shall contribute to the amount paid or payable by the such indemnified party as a result of such loss, liability, claim, damage or liability expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party and on the indemnifying partyother in connection with the statements or omissions that resulted in such loss, liability, claim, damage or expense, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. No person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding any other provision of this Section, the Investor shall not be required to contribute, in the aggregate (including any payments made by the Investor pursuant to Section 5(b) or as an Indemnifying Party), any amount in excess of the amount by which the net proceeds received by such Investor from the sale of the shares of the Common Stock issued upon conversion of the Convertible Debenture or sale of the shares of Common Stock issued upon exercise of the Warrants, in each case pursuant to a Registration Statement exceeds the amount of damages which the Investor has otherwise been required to pay be reason of such untrue or alleged untrue statement or alleged omission. The obligation of the Investor obliged to make contribution pursuant to this Section shall be several and not joint.
(ce) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder Investor shall impose upon any Holder the Investor any obligation to sell the HolderInvestor's beneficially owned Registrable Securities.
(df) Each HolderThe Investor, upon receipt of notice from the Company that an event has occurred which requires a Postpost-Effective Amendment effective amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder Investor receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable practicable, and in any event within thirty (30) days, after such notice; provided however, that no such discontinuation shall be required for consecutive thirty (30) day periods arising out of the same set of facts, circumstances or transactions.
(eg) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holderthe Investor, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(fh) Each Holder The Investor agrees to provide provide, upon reasonable request by the Company with Company, any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder Investor in the Registration Statement or in order to promote compliance by the Company or the Holder Investor with the Securities Act.
(gi) The With a view to making available to the Investor the benefits of Rule 144 and Rule 144A promulgated under the Securities Act and other rules and regulations of the Commission that may at any time permit the Investor to sell securities of the Company agrees to the public without registration, the Company covenants that it shall cause each of use commercially reasonable efforts to (i) file in a timely manner all reports and other documents required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder and make and keep "current public information" regarding the Company available, as defined in Commission Rule 144(c) under the Securities Act, (ii) so long as an Investor owns any Registrable Securities, furnish the Investor forthwith upon request a written statement by the Company as to its directorscompliance with the reporting requirements under the Securities Act and the Exchange Act, officers and shareholders owning ten percent (10%) or more including compliance with Commission Rule 144(c), a copy of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly most recent annual or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities quarterly report of the Company, including, without limitation, shares of Common Stock that will be received as a result and such other reports and documents of the conversion Company and other information in the possession of, or reasonably obtainable by, the Company as an Investor may reasonably request in availing itself of any rule or regulation of the Series A Stock or Commission allowing an Investor to sell any such securities without registration, and (iii) take such further action as the exercise Investor may reasonably request (including providing any information necessary to comply with Rule 144 and Rule 144A, if available with respect to resales of the WarrantsRegistrable Securities under the Securities Act), at all times, all to the extent required from time to time to enable the Investor to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (x) Rule 144 and Rule 144A (if available with respect to resales of the Registrable Securities) under the Securities Act, as such rules may be amended from time to time, or (y) any other rules or regulations now existing or hereafter adopted by the Commission.
Appears in 1 contract
Samples: Registration Rights Agreement (Bodisen Biotech, Inc)
Additional Terms. (a) The To the extent permitted by law, the Company shall will indemnify each Holder, each of its officers, directors, partners, legal counsel, and hold harmless the Holders accountants, and each underwriter, person controlling such Holder within the meaning of Section 15 of the Securities Act, with respect to which registration, qualification, or compliance has been effected pursuant to this Agreement, and each underwriter, if any, and each person who may purchase from or sell for controls any Holderunderwriter within the meaning of Section 15 of the Securities Act, any Registrable Securities, from and against any and all lossesexpenses, claims, damages and losses, damages, or liabilities caused by (or actions, proceedings, or settlements in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular, or other document (including any related registration statement, notification, or the Registration Statementlike), or any other registration statement filed amendment or supplement thereto, incident to any such registration, qualification, or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any violation by the Company of the Securities Act or any rule or regulation promulgated under the Securities Act with respect applicable to the Company in connection with any such registration, qualification, or compliance, and the Company will reimburse each such Holder, each of its officers, directors, partners, legal counsel, and accountants, and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating, preparing, defending, or settling any such claim, loss, damage, liability, or action, as such expenses are incurred, provided that the Company will not be liable in any such case to the extent that any such claim, loss, damage, liability, or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, (i) made in reliance upon and in conformity with written information furnished to the Company by such Holder, controlling person, or underwriter and stated to be specifically for use therein or (ii) corrected in an amended or supplemented registration statement, prospectus or offering circular provided by the Company for use prior to the purchase giving rise to such claim, loss, damage, liability or expense. It is agreed that the indemnity agreement contained in this Section 4 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld).
(b) To the extent permitted by law, each Holder will, if Registrable SecuritiesSecurities held by such Holder are included in the securities as to which such registration, qualification, or compliance is being effected, indemnify the Company, each of its directors, officers, partners, legal counsel, and accountants, and each underwriter, if any, of the Company’s securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act, and each other such Holder, each of their officers, directors, and partners, and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all claims, losses, damages, and liabilities (or actions in respect thereof) arising out of or based on any post-effective amendment to untrue statement (or alleged untrue statement) of a material fact contained in any such registration statementsstatement, prospectus, offering circular, or other document, or any prospectus included therein omission (or caused by any omission alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar and will reimburse the Company and such Holders, directors, officers, partners, legal counsel, and accountants, persons, underwriters, or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability, or action, as such lossesexpenses are incurred, claimsin each case to the extent, damages or liabilities are caused by any but only to the extent, that such untrue statement (or alleged untrue statement) or omission based (or alleged omission) is made in such registration statement, prospectus, offering circular, or other document in reliance upon and in conformity with written information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly such Holder and stated to be specifically for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus obligations of such Holder hereunder shall not inure apply to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account amounts paid in settlement of any such lossclaims, claimlosses, damage damages, or liability arising from liabilities (or actions in respect thereof) if such settlement is effected without the sale consent of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company (which consent shall not be obligated to so indemnify unreasonably withheld); and provided that that in no event shall any indemnity under this Section 4 exceed the gross proceeds received by such Holder or any in such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use thereinoffering.
(bc) Each party entitled to indemnification under this Section 4 (the “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party’s expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 4 unless the failure to give such notice is materially prejudicial to an Indemnifying Party’s ability to defend such action. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with the defense of such claim and litigation resulting therefrom.
(d) If for any reason the indemnification provided for in the preceding section this Section 4 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party (other than by reason of the exceptions set forth in this Agreement) with respect to any claim, loss, claim, damage, liability liability, or expense referred to therein, then the indemnifying partyIndemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party hereunder, shall contribute to the amount paid or payable by the indemnified party such Indemnified Party as a result of such claim, loss, claimdamage, damage liability, or liability expense in such proportion as is appropriate to reflect the relative fault of the indemnified party Indemnifying Party on the one hand and the indemnifying partyIndemnified Party on the other in connection with the statements or omissions that resulted in such claim, loss, damage, liability, or expense, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact related to information supplied by the Indemnifying Party or by the Indemnified Party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 4 were based solely upon the number of entities from whom contribution was requested or by any other method of allocation which does not take account of the equitable considerations referred to above. In no event shall any contribution by a Holder under this Section 4 exceed the gross proceeds received by such Holder in such offering.
(ce) The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages, and liabilities referred to above in this Section 4 shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim, subject to the provisions of Section 4(c). No person guilty of fraudulent misrepresentation (within the meaning of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(f) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.
(g) The obligations of the Company and Holders under this Section 4 shall survive the completion of any offering of Registrable Securities in a Registration Statement. Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the any Holder shall impose upon any Holder any obligation to sell the such Holder's ’s Registrable Securities.
(dh) Each HolderHolder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company that an of the occurrence of any event has occurred which requires a Post-Effective Amendment to of the kind described in Section 3(c), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented prospectus and/or amended Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which it is advised in writing by the Company shall that the use of the applicable prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such prospectus or Registration Statement. The Company may provide as soon as practicable after such noticeappropriate stop orders to enforce the provisions of this paragraph.
(ei) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best commercially reasonable efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(fj) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the such Holder in the Registration Statement or in order to promote compliance by the Company or the such Holder with the Securities Act.
(gk) The Company agrees that it shall cause each of Each Holder, by its directors, officers and shareholders owning ten percent (10%) or more acceptance of the Company's outstanding Common Stock Registrable Securities, agrees to refrain from selling any shares cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of the Company's Common Stock until the a Registration Statement has been declared effectivehereunder.
(hl) Each Holder, on behalf of itself and itself, its affiliates, its successors and assigns and any other direct or indirect transferee holding any of the Warrants, the Series A Stock or the Registrable Securities, hereby covenants and agrees not to, directly or indirectly, offer to "“short sell"”, contract to "“short sell" ” or otherwise "“short sell" ” or encourage others to “short sell” any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants. For purposes of this Agreement, “short selling” shall include any sale, any trade in any option or other derivative security, any hedging transaction relating to the securities of the Company or any transaction intended to affect the price of the Company’s common stock.
Appears in 1 contract
Additional Terms. Notwithstanding anything to the contrary contained elsewhere in this Agreement or otherwise, the parties have mutually agreed to the following terms which shall be valid and binding on them in addition to and/or in modification/supercession of those contained hereinbefore:
(ai) Notwithstanding anything to the contrary contained elsewhere in this Agreement or otherwise, it is expressly acknowledged and agreed by the Allottee that prior to entering into this Agreement and prior to making any payment, the Allottee has read, understood and accepted the terms, conditions, covenants, undertakings, restrictions, stipulations, obligations and liabilities contained in the Lease Deed as also in the documents forming part thereof which shall be unconditionally, irrevocably and fully binding on him and the Allottee agrees, undertakes and covenants to fully comply with the same.
(ii) The Company shall indemnify Allottee is aware that the Land is a leasehold land governed by the terms and hold harmless the Holders and each underwriter, within the meaning conditions of the Securities Actsaid Xxxxx Xxxx and the documents forming part thereof. The Allottee agrees, who undertakes and covenants not to commit any breach, default or violation thereof and not to do any act, deed, matter or thing and/or omit to do anything which may purchase adversely affect the said Lease in any manner whatsoever and/or whereby and/or by reason whereof the said Lease is liable to be terminated under the terms and conditions thereof and/or by reason whereof the Promoter may be treated to be in breach of any of its obligations or undertakings under the said Lease and/or otherwise and/or which may in any manner expose the Promoter to any potential or actual financial or other liability or obligation and/or to any adverse action and/or which may in any way hinder, delay and/or otherwise adversely affect the Project and/or its development, marketing and disposal in any manner whatsoever and the Allottee hereby indemnifies and agrees to keep the Promoter fully indemnified and harmless regarding the above.
(iii) The Allottee declares and confirms that prior to the execution of this Agreement the Allottee has independently made himself aware of all applicable laws, rules, regulations, notifications, guidelines, approvals, permissions, sanctions, no objections, permissions, registrations etc. relating to the Project and has fully satisfied himself regarding the same.
(iv) The Allottee agrees, undertakes and covenants not to commit any breach, default or violation of any of the terms, conditions, undertakings, declarations etc. relating to the Approvals and to fully comply with the same and the Allottee hereby indemnifies and agrees to keep the Promoter fully indemnified and harmless regarding the above.
(v) The Ministry of Railways, Government of India is the owner of Premises free from all encumbrances, charges, liens, claims, demands, mortgages, leases, tenancies, licenses, occupancy rights, liabilities, attachments, trusts, debutters, prohibitions, restrictions, restrictive covenants, executions, acquisitions, requisitions, vestings, alignments, easements and lispendens whatsoever and No Encumbrance Certificate stating the same has been duly issued by RLDA.
(vi) The said Land is owned by the Railways and has been entrusted to RLDA for development. The said Xxxxx has been granted after following a tendering process. In view of the said Land being owned by the Railways, certain benefits, advantages, exemptions etc. are applicable to the same under the applicable laws and the Promoter is and shall be entitled to the benefit of the same for the purpose of development, construction and marketing of the Project and necessary assistance regarding the same has been and shall continue to be provided by RLDA.
(vii) The access to the said Premises has been at present planned through 2(two) gates out of which Gate nos. 2 shown in the Map or sell for Plan annexed hereto shall be used by the Unit Allottees including the Allottee herein on a regular basis and the right of access to the Premises through Gate no. 1 from the main road side through the balance land of RLDA over the 6 meter wide road to be constructed by the Promoter may be used by the Unit Allottees only in case of emergency and in accordance with the undertaking given to RLDA under the said Lease and the Allottee hereby agrees and undertakes not to commit any Holderbreach, default or violation of the undertaking and to fully comply with the same and the Allottee hereby indemnifies and agrees to keep the Promoter fully indemnified and harmless regarding the above.
(viii) Notwithstanding anything to the contrary contained elsewhere in this Agreement or otherwise it is expressly agreed and declared that the undertakings, covenants and/or indemnities granted and/or agreed upon by the Allottee in favour of the Promoter under this Agreement and/or the Sub-Lease Deed be made pursuant hereto are and shall always remain unconditional, irrevocably and continuing without any Registrable Securitiestime limit and all indemnities by the Allottee shall cover and indemnify the Promoter fully in all respects including of, from and against any and all claims, demands, actions, legal proceedings, losses, claimsdamages, damages liabilities, costs, charges and liabilities caused expenses etc. without any limitation.
(ix) Besides the additions and alterations permissible under the Act and/or Rules, the Allottee has consented to and/or hereby irrevocably consents that the Promoter may make modifications, additions and alterations within permissible and/or prevailing norms regarding the construction and the specifications of the Buildings, the Common Areas including those mentioned in Part I, Part V and Part VI of Schedule E and its layout and/or the said Apartment as may be deemed necessary and/or as may be advised by the Architects and/or as may be required by any untrue statement of a material fact contained in authority including the Registration Statement, any other registration statement filed by Corporation and the Company same is and shall be deemed to be the previous written consent under the Securities Act with respect Act. Prior to the registration booking of the Registrable Securitiessaid Apartment Unit the Allottee had been informed and made aware that the Common Areas including those mentioned in Part I, any post-effective amendment Part V and Part VI of Schedule E and its layout and/or location may undergo changes and/or modifications and the Allottee has consented to such registration statements, or any prospectus included therein or caused by any omission and/or hereby consents to state therein a material fact required the same and this is and shall be deemed to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning previous written consent of the Securities Act Allottee in terms of the Act. It is agreed that such modifications, additions and/or alterations shall not affect the Total Price/Agreed Premium and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification total quantum of Common Areas mentioned in this Section 4(a) with respect to any prospectus shall not inure to the benefit Part I, Part V and Part VI of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company Schedule E shall not be obligated reduced to so indemnify the detriment of the Allottee.
(x) The decision of the Architects regarding the quality and specifications of the materials and the workmanship regarding construction and completion shall be final and binding on the parties.
(xi) With effect from the Date of Possession and/or the date of expiry of the period specified in the Notice mentioned in Clause 7.2, whichever is earlier, the Allottee shall be deemed to have fully satisfied himself in all respects including the Plans, the construction and the quality, specifications and workmanship thereof, the carpet area and built-up area and super built-up area, the quality of materials used, the structural stability and completion of the Buildings, the Common Areas mentioned in Part I, Part V and Part VI of Schedule E, the said Apartment, etc. and shall not thereafter be entitled to raise any Holder objection or make any claim regarding the same. Notwithstanding anything contained in Clause 12 hereinabove the Promoter shall not be liable to rectify any defect occurring under the following circumstances:-
(a) If there are changes, modifications or alteration in plumbing pipes and fittings and fixtures or change of wall or floor tiles after the Allottee takes over possession of the said Apartment, the Promoter will not have any responsibility or liability for waterproofing, cracks or any defect in plumbing pipes and fittings and fixtures that have developed directly or indirectly due to such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.changes;
(b) If there are changes, modifications or alteration in electrical lines and wirings after the Allottee takes over possession of the said Apartment, the Promoter will not have any responsibility or liability for any reason the indemnification provided for defect in the preceding section is held by a court of competent jurisdiction electrical lines and wirings that have developed directly or indirectly due to be unavailable to an indemnified party with respect to any losssuch changes, claim, damage, liability modifications or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.alterations;
(c) Neither If there are changes, modifications or alterations in doors, windows or other related items, then the filing Promoter will not have any responsibility or liability for door locks or door alignment or seepage from windows or any other related defects arising directly or indirectly out of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.such changes, modifications or alterations;
(d) Each HolderIf the Allottee after taking actual physical possession of the said Apartment executes interior decoration work including any addition and/or alteration in the layout of the internal walls of the said Apartment by making any changes in the said Apartment, upon receipt then any defect like damp, hair line cracks, breakage in floor tiles or other defects arising as a direct or indirect consequence of notice from such alterations or changes will not be entertained by the Company that an event has occurred which requires a Post-Effective Amendment to Promoter and the Registration Statement Promoter will not have any responsibility or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after liability for rectifying such notice.defects;
(e) If the Company fails Different materials have different coefficient of expansion and contraction and as such because of this difference there are chances of cracks developing on joints of brick walls and RCC beams and columns. Any such cracks are normal in high rise buildings and needs to keep the Registration Statement referred be repaired from time to above continuously effective during the requisite period, then the Company shall, promptly upon the request of time. The Promoter will not have any Holder, use best efforts to update the Registration Statement responsibility or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereofliability for rectifying such cracks.
(f) Each Holder agrees to provide If the Company with any information or undertakings reasonably requested materials and fittings and fixtures provided by the Company in order for Promoter are not being maintained by the Company to include any appropriate information concerning the Holder Allottee or his/her agents in the Registration Statement or manner in order which same is required to promote compliance by the Company or the Holder with the Securities Actbe maintained.
(g) The Company agrees that it shall cause each Any electrical fittings and/or gadgets or appliances or other fittings and fixtures provided by the Promoter in the Common Areas including those mentioned in Part I, Part V and Part VI of its directors, officers and shareholders owning ten percent (10%) Schedule E and/or in the said Apartment going out of order or more malfunctioning due to voltage fluctuations or other reasons not under the control of the Company's outstanding Common Stock Promoter and not amounting to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effectivepoor workmanship or manufacture thereof.
(h) Each HolderIf the Architect certifies that any purported defects are not manufacturing defect or due to poor workmanship or poor quality.
(i) Notwithstanding anything hereinbefore contained it is hereby expressly agreed and understood that in case the Allottee, without first notifying the Promoter and without giving the Promoter the reasonable opportunity to inspect, assess and determine the nature of purported defect in the said Apartment (which inspection Promoter shall endeavour to complete within 15 days of receipt of the notice from the Allottee), alters the state and condition of the area of the purported defect, then the Promoter shall be relieved of its obligations contained in clause 12 hereinabove and the Allottee shall not be entitled to any cost or compensation in respect thereof.
(xii) From the Date of Possession, the Allottee shall be liable to pay the monthly charges for use of electricity to the said Apartment as per sub-meter/independent meter installed for the same within seven days of issue of bill.
(xiii) After the Date of Possession or within 30 days from the date of execution of the Deed of Sub-Lease, whichever is earlier, the Allottee shall apply for mutation to the Authorities and shall take all necessary steps and complete, at the Allottee’s own costs, the mutation of the said Apartment Unit in the Allottee’s name within 6 months thereafter as the sub-lessee thereof.
(xiv) In case of there being a failure, refusal, neglect, breach, violation, non-compliance or default on behalf the part of itself and its affiliatesthe Allottee to perform or comply with any of the terms, hereby covenants and agrees not toconditions, directly or indirectlycovenants, offer to "short sell"undertakings, contract to "short sell" stipulations, restrictions, prohibitions and/or obligations under this Agreement or otherwise "short sell" any securities under law, then the Promoter shall be entitled to issue a Notice to the Allottee calling upon the Allottee to rectify, remedy, make good or set right the same within one month from the date of issue of such Notice. If the Allottee does not comply with the said Notice to the satisfaction of the CompanyPromoter within the above time, includingthen the Allottee shall be liable to pay to the Promoter compensation and/or damages that may be quantified by the Promoter and in default of such payment within 30 days, without limitation, shares of Common Stock that will be received as a result the Promoter may terminate the allotment /Agreement of the conversion said Apartment in favour of the Series A Stock or Allottee. In case of termination the exercise of the Warrants.provisions under sub-clause 9.3
Appears in 1 contract
Samples: Sub Lease Agreement
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effectiveeffective The Company agrees that it shall cause each of its directors and officers to execute a lock-up agreement providing that (i) for a period of 6 months after the date hereof, such officers and directors shall not sell in the aggregate more than 20,000 shares of Common Stock during any 30 day period, and (ii) for months 7 through 12 after the date hereof, they shall not individually sell more than 20,000 shares of Common Stock during any 30 day period.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. Except as otherwise expressly stated herein, the following provisions shall be applicable to the Registration Statement:
(ai) The Company will use its best efforts to cause the Registration Statement to become effective as promptly as possible, and if any stop order shall be issued by the SEC in connection therewith to use its reasonable efforts to obtain the Page 91 of 149 removal of such order. Following the effective date of the Registration Statement, the Company shall, upon the request of the Holder, forthwith supply such reasonable number of copies of the Registration Statement, preliminary prospectus and prospectus meeting the requirements of the Securities Act of 1933, as amended (the "Securities Act"), and other documents necessary or incidental to a public offering of the Registrable Securities, as shall be reasonably requested by the Holder to permit the Holder to make a public distribution of its, his or her Registrable Securities; provided, however, that by accepting this Warrant, the Holder agrees, if requested by the managing underwriter(s) in connection with an underwritten public offering of the Company's equity securities, to enter into a customary agreement with such managing underwriter(s) not to offer for sale or sell its, his or her Registrable Securities for up to 180 days after such offering. The Company will use its reasonable efforts to qualify the Registrable Securities for sale in such states as the Holder of Registrable Securities shall reasonably request, provided that no such qualification will be required in any jurisdiction where, solely as a result thereof, the Company would be subject to service of general process or to taxation or qualification as a foreign corporation doing business in such jurisdiction. The obligations of the Company hereunder with respect to the Holder's Registrable Securities are expressly conditioned on the Holder's furnishing to the Company such appropriate information concerning the Holder, the Holder's Registrable Securities and the terms of the Holders offering of such Registrable Securities as the Company may reasonably request.
(ii) The Company shall pay all expenses incurred in complying with the provisions of this Paragraph 14, including, without limitation, all registration and filing fees (including all expenses incident to filing with the National Association of Securities Dealers, Inc.), printing expenses, fees and disbursements of counsel to the Company, securities law and blue sky fees and expenses and the expenses of any regular and special audits incident to or required by any such registration. All underwriting discounts and selling commissions applicable to the sales of the Registrable Securities, and any state or federal transfer taxes payable with respect to the sales of the Registrable Securities and all fees and disbursements of counsel for the Holder, if any, in each case arising in connection with registration of the Registrable Securities shall be payable by the Holder.
(iii) In connection with the registration of the Registrable Securities pursuant to this Paragraph 14, the Company shall indemnify and hold harmless the Holders Holder, its affiliates, officers, directors, partners, employees, agents and representatives, each underwriterperson, if any, who controls the Holder within the meaning of the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act, who may purchase from or sell for any Holder"), any person deemed to be an underwriter of the Registrable SecuritiesSecurities and any person claiming by or through any of them (collectively, the "Indemnified Persons") from and against any and all losses, claims, damages and damages, expenses or liabilities caused by (or actions in respect thereof) arising out of or are based upon any untrue statement of a any material fact contained in the Registration StatementStatement or alleged untrue statement, any other registration statement filed by the Company under which such securities were registered under the Securities Act with respect to the registration of the Registrable SecuritiesAct, any post-effective amendment to such registration statementspreliminary prospectus or final prospectus contained therein, or any prospectus included therein amendment or caused by any supplement thereto, or arise out of or are based upon the omission to state therein a material fact required to be stated therein or necessary to make the statements therein made therein, in light of the circumstances under which they are made, not misleading, except insofar as such lossesor any violation by the Company of the Securities Act, claims, damages the Exchange Act or liabilities are caused by any such untrue statement state securities or omission based upon information furnished or required to be furnished in writing blue sky laws applicable to the Company by the Holders and relating to action or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning inaction required of the Securities Act Company in connection with such registration or qualification under such state securities or blue sky laws; and each officerwill reimburse the Indemnified Persons for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such loss, directorclaim, employee and agent of each Holder and underwriterdamage, liability or action; provided, however, that the indemnification Company will not be liable in this Section 4(a) with respect any such case to any prospectus shall not inure Indemnified Person to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of extent that any such loss, claim, damage or liability arising from the sale arises out of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the is based upon an untrue statement or omission made in such earlier the Registration Statement, said preliminary prospectus was provided or said final prospectus or said amendment or supplement or any document incident thereto in reliance upon and in conformity with written information furnished to such Holder or underwriter by the Company prior to by or on behalf of the subject sale Holder.
(iv) The Holder will indemnify and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that hold harmless the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act, each officer of the Company who signs the Registration Statement and each director of the Company from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by arising from any untrue statement in, or omission based from, the Registration Statement, any such preliminary or final prospectus, amendment, or supplement or document incident thereto if the statement or omission in respect of which such loss, claim, damage or liability is asserted was made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Holder or underwriter expressly for use thereinin connection with the preparation of the Registration Statement or such prospectus or amendment or supplement thereof.
(bv) The reimbursements required by clauses (iii) and (iv) shall be made by periodic payments during the course of the investigation or defense as and when bills are received or expenses incurred; provided, however, that to the extent that an indemnified party receives periodic payments for legal or other expenses during the course of an investigation or defense, and such party subsequently received payments for such expenses from any other parties to the proceeding, such payments shall be used by the indemnified party to reimburse the indemnifying party for such periodic payments. Any party which proposes to assert the right to be indemnified under clause (iii) or (iv) will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim is to be made against any indemnified party hereunder, notify each such indemnifying party of the commencement of such action, suit or proceeding, enclosing a copy of all papers served, but the failure to so notify such indemnifying party of any such action, suit or proceeding shall not relieve the indemnifying party from any obligation which it may have to any indemnified party hereunder unless and only to the extent that the indemnifying party is prejudiced by said lack of notice. In case any such action, suit or proceeding shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal or other expense, other than reasonable costs of investigation subsequently incurred by such indemnified party in connection with the defense thereof. The indemnified party shall have the right to employ its own counsel in any such action, but the reasonable fees and expenses of such counsel shall be at the expense of such indemnified party, when and as incurred, unless (A) the employment of counsel by such indemnified party has been authorized by the indemnifying party, (B) the indemnified party has reasonably concluded (based on advice of counsel), that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying party, (C) the indemnified party shall have reasonably concluded (based on advice of counsel) that there may be a conflict of interest between the indemnifying party and the indemnified party in the conduct of defense of such action (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party), or (D) the indemnifying party shall not in fact have employed counsel to assume the defense of such action within 15 days after receipt of notice of such action. An indemnifying party shall not be liable for any settlement or any action or claim effected without its consent, which shall not be unreasonably withheld.
(vi) If for any reason the indemnification provided for in the preceding section this Paragraph 14 is held by a court of competent jurisdiction to be unavailable to an any indemnified party with hereunder in respect to of any losslosses, claimclaims, damagedamages, liability liabilities or expense expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunderparty, shall contribute to the amount paid or payable by the such indemnified party as a result of such losslosses, claimclaims, damage damages, liabilities or liability expenses in such proportion as is appropriate to reflect the relative fault of the indemnified indemnifying party and indemnified parties in connection with the indemnifying partyactions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying, party or indemnified parties, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth herein, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(cvii) The Company and the Holder agree that it would not be just and equitable if contribution pursuant to clause (vi) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding any other provision hereof, in no event shall the contribution obligation of the Holder be greater in amount than the excess of (A) the dollar amount of proceeds received by the Holder upon the sale of the securities giving rise to such contribution obligation over (B) the dollar amount of any damages that the Holder has otherwise been required to pay by reason of the untrue or alleged untrue statement or omission or alleged omission giving rise to such obligation. No person guilty of fraudulent misrepresentation (within the meaning of Section 1l(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(viii) Neither the filing of a the Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any the Holder any obligation to exercise his, her or its Warrants or to sell the Holder's his, her or its Registrable Securities.
(dix) Each The Holder, upon receipt of notice from the Company that an event has occurred which requires a Postpost-Effective Amendment effective amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of his, her or its Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Cramer Rosenthal McGlynn LLC /Adv)
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliatesaffiliates and the permitted assignee of any Conversion Shares or Warrant Shares, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A B Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's ’s Registrable Securities.
(d) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's ’s outstanding Common Stock to refrain from selling any shares of the Company's ’s Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and Holder agrees with the Company that such Holder will not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of sell the Company, including, without limitation, ’s shares of Common Stock that will be received as a result Stock, either before or after the effective date of the conversion of the Series A Stock or the exercise of the WarrantsRegistration Statement.
Appears in 1 contract
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders Holder and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any the Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders Holder or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any either the Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each the Holder and underwriter; provided, however, that the indemnification in this Section 4(a5(a) with respect to any prospectus shall not inure to the benefit of any the Holder or underwriter (or to the benefit of any person controlling any the Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such the Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any the Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the indemnified party and the indemnifying party, but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any the Holder any obligation to sell the Holder's Registrable Securities.
(d) Each The Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holderthe Holders of at least a majority of the unsold Registrable Securities, use its best efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof.
(f) Each The Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder Holders with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Additional Terms. (a) The Company shall indemnify and hold harmless the Holders and each underwriter, within the meaning of the Securities Act, who may purchase from or sell for any Holder, any Registrable Securities, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any other registration statement filed by the Company under the Securities Act with respect to the registration of the Registrable Securities, any post-effective amendment to such registration statements, or any prospectus included therein or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information furnished or required to be furnished in writing to the Company by the Holders or underwriter expressly for use therein, which indemnification shall include each person, if any, who controls any Holder or underwriter within the meaning of the Securities Act and each officer, director, employee and agent of each Holder and underwriter; provided, however, that the indemnification in this Section 4(a) with respect to any prospectus shall not inure to the benefit of any Holder or underwriter (or to the benefit of any person controlling any Holder or underwriter) on account of any such loss, claim, damage or liability arising from the sale of Registrable Securities by the Holder or underwriter, if a copy of a subsequent prospectus correcting the untrue statement or omission in such earlier prospectus was provided to such Holder or underwriter by the Company prior to the subject sale and the subsequent prospectus was not delivered or sent by the Holder or underwriter to the purchaser prior to such sale and provided further, that the Company shall not be obligated to so indemnify any Holder or any such underwriter or other person referred to above unless the Holder or underwriter or other person, as the case may be, shall at the same time indemnify the Company, its directors, each officer signing the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission based upon information furnished in writing to the Company by the Holder or underwriter expressly for use therein.
(b) The Holders shall indemnify and hold harmless the Company, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of a material fact contained in the Registration Statement, any registration statement or any prospectus required to be filed or furnished by reason of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any material untrue statement or material omission based upon information furnished in writing to the Company by any Holder expressly for use therein.
(c) If for any reason the indemnification provided for in the preceding section is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
(cd) Promptly after receipt by an indemnified party under this Section 4 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 4, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential conflict of interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of liability to the indemnified party under this Section 4 only to the extent the indemnifying party is prejudiced as a result thereof.
(e) Neither the filing of a Registration Statement by the Company pursuant to this Agreement nor the making of any request for prospectuses by the Holder shall impose upon any Holder any obligation to sell the Holder's Registrable Securities.
(df) Each Holder, upon receipt of notice from the Company that an event has occurred which requires a Post-Effective Amendment to the Registration Statement or a supplement to the prospectus included therein, shall promptly discontinue the sale of Registrable Securities until the Holder receives a copy of a supplemented or amended prospectus from the Company, which the Company shall provide as soon as practicable after such notice.
(eg) If the Company fails to keep the Registration Statement referred to above continuously effective during the requisite period, then the Company shall, promptly upon the request of any Holder, use best commercially reasonable efforts to update the Registration Statement or file a new registration statement covering the Registrable Securities remaining unsold, subject to the terms and provisions hereof, so that the registration of such unsold Registered Securities is maintained for a number of days beyond the Expiration Date equal to the number of days that the Holder is unable to sell pursuant to Section 4(f) above.
(fh) Each Holder agrees to provide the Company with any information or undertakings reasonably requested by the Company in order for the Company to include any appropriate information concerning the Holder in the Registration Statement or in order to promote compliance by the Company or the Holder with the Securities Act.
(g) The Company agrees that it shall cause each of its directors, officers and shareholders owning ten percent (10%) or more of the Company's outstanding Common Stock to refrain from selling any shares of the Company's Common Stock until the Registration Statement has been declared effective.
(h) Each Holder, on behalf of itself and its affiliates, hereby covenants and agrees not to, directly or indirectly, offer to "short sell", contract to "short sell" or otherwise "short sell" any securities of the Company, including, without limitation, shares of Common Stock that will be received as a result of the conversion of the Series A Stock or the exercise of the Warrants.
Appears in 1 contract
Samples: Registration Rights Agreement (Interactive Television Networks)
