By Advisor. (i) If the Company breaches this Agreement or fails to make any payments or provide information required hereunder; or,
(ii) If the Company ceases business or, other than in an Initial Merger, sells a controlling interest to a third party, or agrees to a consolidation or merger of itself with or into another corporation, or enters into such a transaction outside of the scope of this Agreement, or sells substantially all of its assets to another corporation, entity or individual outside of the scope of this Agreement; or,
(iii) If the Company subsequent to the execution hereof has a receiver appointed for its business or assets, or otherwise becomes insolvent or unable to timely satisfy its obligations in the ordinary course of, including but not limited to the obligation to pay the Initial Fee, the Transaction fee, or the Advisory Fee; or,
(iv) If the Company subsequent to the execution hereof institutes, makes a general assignment for the benefit of creditors, has instituted against it any bankruptcy proceeding for reorganization for rearrangement of its financial affairs, files a petition in a court of bankruptcy, or is adjudicated a bankrupt; or,
(v) If any of the disclosures made herein or subsequent hereto by the Company to Consultant are determined to be materially false or misleading. In the event Advisor elects to terminate without cause or this Agreement is terminated prior to the expiration of the Primary Term or any Extension Period by mutual written agreement, or by the Company for the reasons set forth in A(i) and (ii) above, the Company shall only be responsible to pay Advisor for unreimbursed expenses, Advisory Fee and Transaction Fee accrued up to and including the effective date of termination. If this Agreement is terminated by the Company for any other reason, or by Advisor for reasons set forth in B(i) through (v) above, Advisor shall be entitled to any outstanding unpaid portion of reimbursable expenses, Transaction Fee, if any, and for the remainder of the unexpired portion of the applicable term (Primary Term or Extension Period) of the Agreement.
By Advisor. (1) If the Company breaches this Agreement or fails to make payments or provide information and documents required hereunder; or,
(2) If the Company ceases business or sells a controlling interest to a third party, or agrees to a consolidation or merger of itself with or into another corporation, or enters into such a transaction outside of the scope of this Agreement, or sells substantially all of its assets to another corporation, entity or individual outside the scope of this Agreement; or,
(3) If the Company subsequent to the execution hereof has a Receiver appointed for its business or assets, or otherwise becomes insolvent or unable to timely satisfy its obligations in the ordinary course of its business; or
(4) If the Company subsequent to the execution hereof institutes, makes a general assignment for the benefit of creditors, has instituted against it any bankruptcy proceeding for reorganization or rearrangement of its financial affairs, files a petition in a court of bankruptcy, or is adjudicated a bankrupt; or
(5) If any of the disclosures made herein or subsequent hereto by the Company to Advisor are determined to be materially false or misleading. In the event either party elects to terminate for cause or this Agreement is terminated prior to the expiration of the Initial Term or if this Agreement is terminated by mutual written agreement, the Company shall be responsible to pay Advisor for unreimbursed expenses due hereunder.
By Advisor. Until the third anniversary of the date of termination of this Agreement, the Advisor shall not hire or solicit to perform services (as an employee, consultant or otherwise) any employee of the Company or any subsidiary of the Company; provided, however, that (i) general solicitations of employment published in a journal, newspaper or other publication of general circulation or listed on any internet job site and not specifically directed towards such employees shall not be deemed to constitute solicitation for purposes of this Agreement and (ii) any hiring of any employee of the Company or any subsidiary of the Company will not be prohibited where such hiring is not the result of a solicitation by the Advisor or an Affiliate of the Advisor.
By Advisor. (i) If the Company breaches this Agreement or fails to make any payments or provide information required hereunder; or,
(ii) If the Company ceases business or, other than in an Initial Merger, sells a controlling interest to a third party, or agrees to a consolidation or merger of itself with or into another corporation, or enters into such a transaction outside of the scope of this Agreement, or sells substantially all of its assets to another corporation, entity or individual outside of the scope of this Agreement; or,
By Advisor. (i) If the Company breaches this Agreement or fails to make any payments or provide information required hereunder; or
(ii) If the Company ceases business or, other than in an Initial Merger, sells a controlling interest to a third party, or agrees to a consolidation or merger of itself with or into another corporation, or enters into such a transaction outside of the scope of this Agreement, or sell substantially all of its assets to another corporation, entity or individual outside of the scope of this Agreement; or
(iii) If the Company, subsequent to the execution hereof, has a receiver appointed for its business or assets, or otherwise becomes insolvent or unable to timely satisfy its obligations in the ordinary course of, including but not limited to, the obligation to pay the Initial Fee, the Transaction Fee, or the Advisory Fee; or
(iv) If the company, subsequent to the execution hereof, institutes, makes a general assignment for the benefit of creditors, has instituted against it any bankruptcy proceeding for reorganization for rearrangement of its financial affairs, files a petition in a court of Bankruptcy, or is adjudicated a bankrupt; or
(v) If any of the disclosures made herein or subsequent hereto by the Company to Consultant are determined to be materially false or misleading.
By Advisor. (i) If the Company fails to make any payments required hereunder;
(ii) If the Company subsequent to the execution hereof institutes, makes a general assignment for the benefit of creditors, has instituted against it any bankruptcy proceeding for reorganization for rearrangement of its financial affairs, files a petition in a court of bankruptcy, or is adjudicated a bankrupt; or,
(iii) If any of the disclosures made herein or subsequent hereto by the Company to Consultant are determined to be materially false or misleading.
By Advisor. (i) If the Company breaches this Agreement or fails to make any payments or provide information required hereunder; or,
(ii) If the Company ceases business or, other than in an Initial Merger, sells a controlling interest to a third party, or agrees to a consolidation or merger of itself with or into another corporation, or enters into such a transaction outside of the scope of this Agreement, or sells substantially all of its assets to another corporation, entity or individual outside of the scope of this Agreement; or,
(iii) If the Company subsequent to the execution hereof has a receiver appointed for its business or assets, or otherwise becomes insolvent or unable to timely satisfy its obligations in the ordinary course of, including but not limited to the obligation to pay the Initial Fee, the Transaction fee, or the Advisory Fee; or,
By Advisor. The Advisor shall prepare a statement documenting the expenses of the Company during each quarter and shall deliver such statement to the Company within forty-five (45) days after the end of each quarter.
By Advisor. The Tranche B Warrants and the Tranche C Warrants will expire at the earlier of (i) November 5, 2011, or (ii) the termination of this Agreement November 5, 2010, (1) by the Company due to a material breach of this Agreement by Advisor or (2) by Advisor. A “material breach” would be either (x) a failure to perform, in a commercially reasonable manner, the services required or to be required under paragraph 1 of this agreement; or (y) a breach of any of the representations in paragraph 5 of this agreement. Warrants will become exercisable on November 5, 2009 with respect to the Tranche A Warrants and November 5, 2010 with respect to the Tranche B Warrants and Tranche C Warrants, and may be exercised in whole or in part at any time thereafter until their expiration by the submission of an exercise notice in the form to be attached as an exhibit to the applicable Warrant agreement. The Company will use reasonable commercial efforts to register, under the Securities Act of 1933, the shares to be issued upon exercise of the Warrants, at its discretion, in one or more of the following ways: (i) for resale by Advisor, following issuance of the shares to be registered, either on a separate registration statement filed for that purpose or as part of another registration statement that the Company may file, provided that the Company shall not be required at any time to file a registration statement for less than 50,000 shares issued upon exercise of Warrants; or (ii) prior to exercise of the Warrants by Advisor if the Company determines, in its sole discretion, that it is then eligible to use a Form S-3 registration statement for such registration. Determination of compliance with registration requirements under Federal and State securities laws will be at the sole discretion of the Company. To the extent the shares issuable upon exercise are not registered prior to issuance, they will bear a legend restricting transfer. The Warrants will not be transferable, other than to an affiliate (as defined in Rule 405 under the Securities Act of 1933, as amended) of the Advisor (so long as such affiliate is an “accredited investor” as defined below and agrees to be bound by the terms and provisions of this Agreement and the Warrant agreement as if, and to the fullest extent as, the Advisor, and will bear a legend to that effect. The Company reasonably believes that all information it provides to Advisor is accurate and complete in all material respects. Company acknowledges t...
By Advisor. Advisor will indemnify and save Company harmless from and against any and all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by Company in connection with any action, suit or proceeding arising or resulting from (i) Advisor’s willful misconduct, gross negligence or fraudulent conduct; (ii) Advisor’s material breach of this Agreement; (iii) the untruth in a material respect of Advisor’s representation and warranty contained herein; or (iv) the commission by Advisor of a crime involving moral turpitude or fraud.
